Heritable Property – Title Conditions – Discharge or Variation – Deed of conditions prohibiting further building without superior’s consent – Neighbour admittedly benefited – Single storey extension to bungalow – Modern estate in which already a large number of additions and extensions – Proposal to build to boundary – Reasonableness – Variation granted – Title Conditions (Scotland) Act 2003, Sections 98, 100

Daniel Anderson and Another v Elaine McKinnon
12 January 2007

Proprietors of a bungalow applied for discharge of a title condition in a 1993 deed of conditions in relation to a housing estate, in order to enable them to erect a single storey extension to the side of their house and up to its boundary. The condition prohibited further building without the superior’s approval. The respondent, the adjoining proprietor, was admittedly benefited. Her house was on 2 storeys and had itself been extended by the previous proprietor at upper floor level, towards but not right up to the boundary. That gable extension had a window at the end of an upstairs corridor. There had already been a large number of additions and extensions on the estate but the respondent correctly pointed out that there had been none up to the boundary leaving a gap of similar size where the neighbouring gable had a window. The applicants had obtained planning consent before the respondent bought her house, and a building warrant had also been granted.

Held, allowing the application to the extent of permitting the development for which consents had been granted, the reasonableness of this application came down almost entirely to balancing up the benefit and the burden. There had been considerable changes in the locality, but none went quite so far as this proposal. As to the purpose of this title condition, it was in standard general terms which related more to general amenity in the neighbourhood than to particular interests of immediate neighbours. The effect of the extension on the light of the window on the respondent’s gable would be very modest; there would be some very slight effect on privacy; and the gap between the properties would be quite narrow. Problems which the respondent suggested might arise in relation to maintenance were not of much weight. There was nothing out of the ordinary about the likely effect of the construction works. The applicants’ enjoyment of their property would be very considerably impeded by the respondent’s refusal of consent, there being nothing unusual or abnormal about the proposed extension. It would not be fair to put too much weight on the planning consent, but overall the proposal to relax the condition was reasonable. It should not, however, be discharged completely: the 2003 Act having confirmed, perhaps given, the right of co-proprietors to enforce former feudal burdens in property communities, it would not be appropriate to discharge these completely.

Authority referred to:-

Ord v Mashford and Others 2006 SLT (Lands Tr) 15.

See full decision:  LTS/TC/2006/04 (Merits) and LTS/TC/2006/04 (Expenses)