Heritable Property – Title Conditions – Discharge or Variation – Building restriction in 1933 Feu Charter – Bungalow – Extension at ground and roof level – Opposition to roof level element – Reasonableness – Variation granted – Title Conditions (Scotland) Act 2003, Sections 98, 100

Heritable Property – Title Conditions – Compensation – Variation of building restriction to permit extension at ground and roof level – Whether any relevant claim of ‘loss or disadvantage’ – Whether ‘substantial’ – Title Conditions (Scotland) Act 2003, Section 90(6),(7)

Mark Gallagher and Another v Wood
22 August 2007

The subjects were a detached bungalow and garden in a carefully planned 1930’s development which retained its general character and high amenity. There had been many extensions but mostly to the limited extent of adding dormer windows to create upper floor accommodation and flat-roofed extensions or conservatories at ground level. There had been a small number of extensions of roofs beyond the original footprints of the houses. The applicants proposed, and had obtained planning permission for, an extension of that latter sort, to provide substantial additional accommodation. The resopondent was an immediate neighbour who was admittedly benefited and who did not oppose the ground level element but did object to the upper flor element in the proposal. He argued that the condition gave him the benefit of open views and that the design had no material advantages for the applicants over other possibilities. It was claimed that the applicants had not explored alternatives, and the purpose of the condition was to protect the general amenity and a fortiori the amenity of individual neighbours. The planning process had not addressed that. Alternatively, the respondent claimed compensation in the absence of any evidence on valuation on a broad view on the basis of the Tribunal’s own inspection: the view which the benefited subjects would lose was priceless.

Held, (1), allowing the application to the extent of varying the condition so as to permit the proposed development, while the proposed extension would be noticeable and have at least some impact on the outlook from the respondent’s property, on a consideration of the statutory factors and on balance the applicant’s proposals were reasonable. The Tribunal’s consideration was different from the planning process, making the grant of planning consent of very limited relevance, but as the effect on neighbours was a planning consideration it was relevant to consider how planning guidance on that applied in the particular case. On the evidence and the Tribunal’s inspection, the roof extension would be noticeable and have some slight overshadowing effect, but it would in due course blend in and its impact on the amenity of the benefited property would be slight. Notwithstanding the respondent’s evidence about the approach of the superiors in the past, it was doubtful whether, if still in existence, the superiors would still have resisted this type of extension. There were some relevant changes of circumstances in the locality and living styles had changed. Inability to proceed with their proposals would represent a considerable impediment to the applicants’ enjoyment of their property, and acceding to an alternative proposal advanced by the respondent would have a considerable impact on the plans. The age of the burden added nothing significant to the findings of changes of circumstances. The purpose of the condition was the regulation of further building in order to maintain the general character of the estate, and there was nothing to indicate a purpose of protecting neighbours: it was general, not particular. Further, there was no indication of a purpose of protecting outlooks at the side of the houses, the general layout and design secured under the Feu Charter being of ‘dual’, i.e. front and rear but not side, aspect houses. The fact that the respondent had erected a conservatory at a time when he felt his outlook to the side was secure was of some limited relevance. The decision did mainly involve balancing burden against benefit.

(2), refusing the claim for compensation, while it was not essential for a claimant to lead valuation evidence, the Tribunal found that the extension would not have any adverse effect on the value of the respondent’s property. It was therefore doubtful whether there was any relevant claim of ‘loss or disadvantage’ under the Act, bearing in mind the requirement for this to be ‘as owner of the benefited property’ (c.f. Gilbert v Spoor [1983] 1 Ch at 32E-F). In any event, any ‘loss or disadvantage’ was not ‘substantial’.

Authorities referred to

Bachoo v George Wimpey 1977 S.L.T. (Lands Tr) 2
Cameron v Stirling 1988 S.L.T. (Lands Tr) 18
Anderson v Trotter 1988 S.C. 925 (2 Div.)
Faeley v Clark, LTS/TC/2005/30, 28.6.2006
Gilbert v Spoor [1983] 1 Ch. 27 (C.A.)

See full decision:  LTS/TC/2007/02 (Merits) and LTS/TC/2007/02 (Expenses)