Heritable Property – Title Conditions – Servitude – Variation – Neighbours benefited – Proposal to vary the route of a pedestrian access – Re-routed footpath located on respondents garden – Reasonableness – Balance of burden and benefit – Variation granted – Title Conditions (Scotland) Act 2003, Sections 98, 100

MacNab v McDowall
24 October 2007

The applicants’ subjects comprise the end dwelling in a terrace of 6 former council houses each with a rear garden. A footpath runs from the public road alongside the gable wall of the terrace and thereafter close to the rear wall of each of three houses; firstly past the applicants’ house, then past the respondents’ mid terraced house and then to the mid terraced house beyond. The footpath is for use by these three residents but that use is restricted, principally to the transport, to the rear of the houses, of heavy, bulky or other items which it would be unreasonable to bring though a dwelling.

The applicants sought consent to vary the route of the footpath to enable them to build a rear extension which, if approved would be the full width of their house and for which planning permission had been obtained. This development required the re-routing of the footpath so that it was re-laid, at the applicants’ expense, around the proposed extension. The respondents opposed this change, principally on the grounds that it would create a longer route to the public road, there would be a loss of amenity, and a section of the re-routed footpath would have to be positioned on their garden. Whilst the respondents did not object to the principle of an extension, they considered that the design of the extension should be altered and the width reduced, so that the re-routed footpath was positioned entirely within the applicants’ site. The application was disposed of on written submissions and a site inspection.

Held The Tribunal considered, in assessing the various factors set out in the Act that it was reasonable to grant the application. In weighing up the benefits and burdens to the parties the Tribunal concluded the evidence favoured the applicants. The design of the extension was not unreasonable; there had been some change in circumstances since the title condition was granted and the purpose of the condition was to regulate rear access (which would continue with the new access) rather than to protect amenity.

Authorities referred to :-

Ord v Mashford 2006 SLT (Lands Tr) 15

See full decision:  LTS/TC/2007/23