Heritable Property – Title conditions – Variation – Former farm steading now in two separate ownerships – Remote rural location – Prohibition in title against “erection” of further house – Proposed conversion of existing barn and minor extensions – Objection by owners of the farmhouse – Concerns over effect of further house on seclusion enjoyed by farmhouse as well as additional use of the access track and effect on private water supply – Purpose of original restriction – Variation granted – Title Conditions (Scotland) Act 2003, Sections 98, 100

Smith v Elrick and Gerrard
20 November 2006

The proprietrix of a cottage with adjacent barn applied to vary a title condition to enable her to convert the existing barn and erect minor extensions to form a further house. The subjects were originally part of a farm steading comprising a farmhouse with a series of outbuildings set in approximately 5 Acres of ground sold off in 1996 by a local authority. On sale the local authority imposed a title condition prohibiting the feuar from “erecting more than one additional house”. They retained the surrounding farmlands as part of a water catchment area. The whole area had been designated as one of great landscape value. The original purchaser formed one additional house within part of the farm buildings and sold to the respondents the farmhouse along with about half of the 5 acres. He subsequently sold to the applicant the house he had formed along with the remainder of the land which included this barn. The respondents objected to the proposal to convert on the grounds that the creation of another house went against the purpose of the original restriction which was to protect the secluded nature of the existing development and prevent the overuse of the services to the former steading. “Services” in the respondents’ view included the access track and the water supply.

Held, granting a variation, the purpose of the original condition was not principally to offer protection to the respondents but to ensure that there was not over-development of the former steading, recognising that the general locality was one of great landscape value used by walkers and members of the public. While fully understanding the Respondents’ desire to maintain a secluded environment the Tribunal concluded that the condition was not intended for the purpose they claimed and, additionally, offered no such certainty as many factors not covered by the restriction would affect their amenity. The extent of the adjoining house, the number of residents occupying it, whether they all used cars and the uses made of the barn were examples of matters not covered by the title restriction all of which could have an effect on the amenity of the former steading. Similarly there was nothing in the condition which regulated how much use was made of the access road. The Tribunal were not persuaded that there was any foundation to the Respondents’ concerns as to the effect of the development on the nature of the sub-strata and its water bearing qualities. Recognising that the barn was in existence and there would be no change in outlook from the respondents’ house the Tribunal concluded that the extent to which the condition benefited the Respondents was limited and that the condition did to a significant extent impede the Applicant’s use of the barn which was now only able to be used to a very limited extent. In granting a variation the Tribunal imposed 2 conditions in line with the applicant’s plans which had received planning permission. The first was that openings in the wall of the barn overlooking the Respondents’ property should be closed off for all time coming; the second regulated the position of rooflights proposed for the new house.

Authorities relied on:-

Ord v Mashford 2006 SLT (Lands Tr) 15
George Wimpey East Scotland Limited 2006 SLT (Lands Tr) 2
Cameron v Stirling 1988 SLT (Lands Tr) 18
Miller Group Ltd v Gardner’s Exrs 1992 SLT (Lands Tr) 62
Halliday, Conveyancing Law and Practice

See full decision:  LTS/TC/2006/14