Heritable Property – Title Conditions – Discharge or Variation – Bungalow – Conditions in 1930’s Feu Charter restricting alteration and further building – Proposed alterations and extension –Neighbouring proprietors accepted as benefited – Objections – Some slight effect on objectors’ properties, but no detrimental effect on general amenity of neighbourhood – Purpose of conditions – Variation, but not complete discharge, granted – Title Conditions (Scotland) Act 2003, Sections 52-3, 98, 100

Smith v Prior and Others
17 November 2006

Title conditions in a 1934 Feu Charter of ground for the erection of a bungalow prohibited alterations or additions without the superior’s consent, and also prohibited any further building on the unbuilt ground, which was to be used exclusively as a garden, etc., except where specially authorized by the superior. The area had been developed on the feuing off of plots by a large estate proprietor on broadly similar conditions permitting purchasers to build to individual designs. Garden sizes were generous but not so large as to provide complete seclusion. The applicants’ proposals to up-grade, modify and extend the bungalow so as to provide extended ground floor and also substantial upstairs accommodation had planning consent but were opposed by neighbouring proprietors. The applicants accepted that these proprietors were (at least after commencement of the 2003 Act provisions) benefited. Prior to November 2004, the proprietors of the superiority would have been unlikely to refuse consent provided a grassum and their expenses were paid, and probably also on condition that there was local authority consent.

Held, allowing the application to the extent of varying the conditions to permit the proposed development, on the evidence this was a normal attempt to improve accommodation and would fit comfortably into the neighbourhood. There would be no detrimental effect on general amenity. There would be some, but no marked, effect on neighbours. There was no change in the character of the neighbourhood but there had been several extensions and alterations nearby. The Tribunal recorded some uncertainty as to whether the properties were ‘related’, or whether there was a ‘common scheme’, but, proceeding on the basis of the concession that the objectors were benefited, noted the statutory intention that former feuing conditions might be enforced by neighbours. In considering the purpose of the conditions, however, it had to be noted that they reflected a contract between the superior and the feuar, and on an examination of their terms their purpose was to protect the residential character, low housing density and general amenity of the area, rather than the physical amenity of the immediate neighbours. However, the factors listed in Section 100 also included the degree of benefit to the benefited proprietors. Prevention of this normal development would be considerably burdensome. The length of time since the condition was created, coupled with changes in the whole system of development control, was of some significance. Weighing up all the factors, relaxation of the burden to enable these proposals to proceed was reasonable.

The condition would not, however be completely discharged: it was possible to envisage circumstances in which a development, although it had planning consent, might have such a serious effect on a neighbour (whom Parliament ex hypothesi intended to benefit) as to make an application on balance unreasonable.

Authorities referred to:-

Ord v Mashford 2006 S.L.T. (LandsTr.) 15
Daly v Bryce LTS/TC/2005/15, 28.4.2006

See full decision:  LTS/TC/2006/06 (Merits) and LTS/TC/2006/06 (Expenses)