Heritable property – Title Conditions – Discharge or variation – Building plot – Restriction on area to be built on – Proposal to build on restricted area – Reasonableness – Recently imposed condition with particular purpose of protecting amenity of benefited property – Circumstances in which application would be refused but decision delayed to give applicants opportunity to make alternative proposals – Title Conditions (Scotland) Act 2003, Sections 98, 100

Cattanach & Anr v Vine-Hall & Anr
3 October 2007

A condition in a deed of conditions executed in 1996 in anticipation of sales by neighbouring proprietors of a piece of ground in two lots for building prohibited building within certain proximities of the boundary with the benefited property. One house had been erected on the lot on the other side, very close to the boundary with the subjects. The applicants had obtained planning permission for their proposed house. It was difficult and perhaps not possible to build a house of the scale and size proposed by the applicants on the subjects without breaching the restriction. The benefited proprietors, who opposed the application, recognized the difficulty and had made clear their willingness to relax the restriction but objected to the particular proposed building, which was a substantial 1½ storey house which would significantly reduce the amount of light reaching their property, particularly in the area of its main public room and conservatory. The applicants argued that there had been certain changes in the immediate locality, that the respondents’ privacy would not be invaded and that the impact would not be substantially different from a bungalow on the same footprint, which the respondents were prepared to accept.

Held, the Tribunal would refuse the application on the basis of the existing proposal but would delay a final decision so as to give the applicants an opportunity to put amended proposals forward, a course to which parties had agreed. The deed of conditions had clearly been entered into in anticipation of building on the two plots and for the benefit of the respondents’ property. The restriction had the clear purpose of protecting the amenity, including light as well as privacy, of the benefited property. The applicants appeared to consider that provided they obtained planning permission they should be allowed to build a house to suit their requirements. The Tribunal did not accept that there was little difference between the proposed house and a normal bungalow. Accepting that there were some changes in circumstance in the immediate locality, these were not such as to undermine the purpose of the condition. It conferred a real and substantial benefit on the benefited property. It impeded the enjoyment of the burdened property by restricting its development potential, particularly following the building of the house on the other lot, and by making it necessary to negotiate with the benefited proprietors. However, the applicants had purchased in full knowledge of the position; the vague evidence led on the planning position did not satisfy the Tribunal that the problem was as bad as suggested; the applicants could build a house on the site; and the respondents’ evident willingness to assist in finding a solution involving some relaxation of the restriction reduced the extent of the impediment. While the grant of planning permission slightly favoured the applicants, this application was concerned with one particular private right which clearly went beyond what the public interest required. Overall, it would not be reasonable to grant the application as it stood. It was to be hoped that the parties could reach agreement, which failing the applicants could either request formal refusal or amend the application on the basis of an altered proposal.

Authorities referred to: None

See full decision:  LTS/TC/2006/62