Heritable Property – Title Conditions – Discharge – Former hall used for religious purposes – Prohibition in title against any other use – Other conditions governing maintenance and alterations – 8 neighbouring houses admittedly benefited – hall proposed to be used as Children’s Nursery – Use Classes Order under Town Planning Acts allows change of use within same class without planning permission – Reasonableness – Discharge granted – Title Conditions (Scotland) Act 2003, Section 98 and 100

Wilson v McNamee
6 September 2007

The Proprietor of a small hall applied for discharge of part of a title condition imposed when the land was first feud off in 1923. This allowed the hall to be built but restricted its use to “religious purposes”. He also sought the discharge of an obligation to apply to the superior for permission for any alterations, now admittedly benefiting the 8 houses feued off at the same time as the hall. The 8 houses adjoined each other. The hall was situated to the rear of the end-most house but fronted a side street. The respondent owned and occupied a house which was 2 houses removed from the hall. All 8 houses were opposite a range of shops which included an off-sales, a small grocer’s and a hot food take-away. There were parking spaces in front of the shops but visitors to the shops also parked on a short term basis on the footpath in front of the houses. A large public house was near-by and there were garage premises located at the opposite corner.

Held allowing the application, the place of religious worship in society had changed considerably since the condition was first imposed and the restriction on use was a significant impediment on the applicant. The general locality already contained a range of uses. In addition there was a high timber lap fence enclosing the garden lying between the hall and the respondent’s house so that it was impossible to see into the garden of the respondent’s house from the Hall. The respondent’s main concern appeared to be that any proposed new use should not be a nuisance to her. Other conditions in the title, which the applicant did not wish to have discharged and which would therefore remain in force to the benefit of all 8 proprietors prohibited nuisance. Certain specific uses including the sale of excisable liquor were banned. The respondent was adequately protected. The condition offered only limited benefit to the respondent. Class 10 of the Use Classes Order which incorporated religious use was quite tightly drawn and any proposed use outwith Class 10 would require the consent of the local Authority. The local Authority would require to consider any representations from the adjoining owners on both sides. This provided adequate protection to the respondent particularly given that the hall was located on a side street.

Authority referred to:-

Church of Scotland General Trustees vMclaren 2006 SLT (Lands Tribunal) 27

See full decision:  LTS/TC/2006/57