Heritable Property – Title Conditions – Discharge or Variation – Proposed extension to rear of burdened property – Right of access in favour of adjoining proprietor affected by proposed extension – Purpose of the Condition – Proposed alternative route more extended – Concern by respondent that because of her age extra length was particularly burdensome – Reasonableness – Variation granted – Title Conditions (Scotland) Act 2003, Sections 98 and 100.

Graham & Fletcher v Parker
14 March 2007

Joint proprietors of an end terraced house applied for a variation of a condition granting a right of access over a defined area of their back and side garden ground in favour of their neighbour. They sought the variation so that they could erect an extension to their existing house. The access route was restricted to pedestrian use and for the movement of heavy or bulky goods including any refuse bins which would otherwise require to be carried through the mid-terraced house. The owner of the mid-terraced house, who benefited from the condition, objected on the basis that the alternative route proposed would involve her in a longer journey and additional maintenance. She was concerned that this would disproportionately impact on her in view of her age.

Held allowing the application that there had been a change in the circumstances affecting the neighbourhood arising from the sale of these former local authority houses with the result that owners were now much more inclined to improve the houses they had bought, including the erection of extensions. The purpose of the condition was quite clear, namely to allow a classified nature of goods to be taken through the neighbours’ garden which, because the respondent’s house was a mid terraced one would otherwise require to be taken through her house. The Applicants had proposed an alternative route, further to the rear of their existing house which would allow them to erect an extension immediately to the rear of the present building. The condition was an undoubted benefit to the respondent but this benefit would not be lost as the alternative route proposed would still allow her to move the bulky goods through her neighbour’s garden albeit involving a longer journey. However the effect on the applicants of a refusal of the application would be significant as they would be denied the opportunity of further investing in the house they had bought by way of the proposed extension. While the Tribunal recognised the genuine concern of the respondent that at her age a longer route was particularly unattractive, personal circumstances were not able to be taken into account and in any event the proposed route was, in the main, over level ground and additional maintenance costs were likely to be de minimis.

Authorities relied on:-

No Authorities were relied on.

See full decision:  LTS/TC/2006/25