Heritable property – Title Conditions – ‘Sunset rule’ – Real burden in 1838 Instrument of Sasine – Prohibition of building in garden of terrace house – Subsequent division – Garden owned by basement proprietor – Notice of termination – Application by upper floor proprietors to renew – Reasonableness – Degree of change at property itself and in immediate vicinity – Degrees of burden and benefit – No specific development proposal or planning permission – Application refused – Title Conditions (Scotland) Act 2003, Sections 20, 90(1)(b)(i), 98, 100

Council for Music in Hospitals and Others v Trustees for Richard Gerard Associates
5 February 2008
LTS/TC/2006/61 and 2007/01

Proprietors of a basement flat in a converted terrace house executed a notice of termination under Section 20 of the 2003 Act (‘Sunset Rule’) in relation to a real burden contained in an 1838 Instrument of Sasine. The burden prohibited building in the garden which was now in their sole ownership. They contemplated a house being built in the garden but had no specific proposal or planning permission. The upper flat proprietors, who were admittedly benefited, applied under section 90(1)(b)(i) to renew the burden. The building, in the East New Town of Edinburgh, formed part of a terrace of 4 houses whose original design and layout were still clear and largely unaltered. Prior to sub-division into flats (which were, however, partially commercially occupied), the building had been in multiple occupancy, virtually on a room by room basis, often by small traders or craftspeople, as had been common in the street for many years. The basement flat and garden had been used as a builder’s yard before being restored to residential use. Neighbouring properties were mainly in flatted residential use. One had a very substantial building (which at least in part appeared to post-date the creation of the burden) in the garden. The subjects and other basements had conservatories. There were a number of other buildings and extensions within original gardens in the street.

The applicants contended that neither the character of the burdened land nor the neighbourhood had changed so as to prevent the burden from operating as originally intended, and there was no relevant change. There was substantial benefit from the burden, and it should not be assumed that any benefit of development would outweigh that. The respondents could apply to vary so as to permit particular proposals. The burden remained relevant. Its purpose was to protect the amenity of the benefited property. There were no consents or deemed consents and there was an indication that the planners would oppose the erection of a building.

The respondents contended that the applicants had failed to establish that it would be reasonable to renew the burden. It could not be inferred that the burden had any purpose which was to do with light or the open prospect: protection of the superior’s interest was more likely. 169 years was considerably longer than the ‘sunset’ threshold. There were relevant changes, in the divided, non-residential occupation and in some degree of change in the buildings in the gardens. Denial of the opportunity to seek to develop and profit from ownership of the land was a relevant burden. The applicants would be protected by the public planning regime. There had been no opposition from owners of adjoining houses.

Held, refusing the applications, the Tribunal had under this particular jurisdiction to consider the same general issue of reasonableness and the same factors as under its ordinary jurisdiction, but the onus was on the applicant benefited proprietors. While onus was often not of great importance, if there was obscurity about the original purpose, or the operation over the years of the title condition, there was at least an initial onus on the benefited proprietors to shed light on such matters. This burden was a building and not a use restriction, and the applicants were correct to refer to the amenity to the rear of the terrace of 4 houses, so little weight should attach to changes in the occupation and use of other buildings in the street. However, the major changes in the character and occupation of the building itself were relevant. The picture was of a burden whose continued operation in the very changed circumstances at the property itself, for the benefit of proprietors whose amenity it was not intended to protect, was hard to justify. The condition was of some present benefit to the upper floor proprietors and there was an evident statutory intention to give the benefit of burdens previously enforceable by superiors to co-proprietors with better claims of legitimate interest, but that was subject to the Tribunal’s jurisdiction. The condition was burdensome on the respondents as owners of the basement, to the extent that they must, if they contemplated building, negotiate with all of the upper floor proprietors, with the possibility of having to apply to the Tribunal, or alternatively offer for sale a title subject to this condition. There had been some building on the ground, as well as to the rear of each of the other 3 houses. The benefited proprietors had their right to object to any application for planning consent. In all the circumstances, it was not reasonable for them to retain the additional private right conferred by this burden. While each case was to be considered on its own facts and circumstances, it was pointed out that the situation in relation to changes of circumstances was very different from that in Brown v Richardson (where the Tribunal, although granting variation to permit a particular proposal, decided that the building restriction in an 1888 feu charter should be kept in existence).

Authorities referred to:-

Ord v Mashford 2006 SLT (Lands Tr) 15
Brown v Richardson LTS/TC/2006/41, 8.5.2007
George Wimpey East Scotland Ltd v Fleming & Ors 2006 SLT (Lands Tr) 2
Gretton & Reid, Conveyancing (3rd edition)
Halliday, Conveyancing Law and Practice (2nd edition)
The Scottish Law commission Report on Real Burdens (No 181)
Stair Memorial Encyclopedia
Cusine & Paisley, Servitudes and Rights of Way

See full decision:  LTS/TC/2006/61 and 2007/01 and LTS/TC/2006/61 and 2007/01 (Expenses)