Heritable property – Title conditions -0 Discharge or variation – Building prohibition – Previous variation to permit dwellinghouse – Application to vary to permit building of garage – Opposition in principle withdrawn – Extent of conditions to be attached – Conditions corresponding to conditions attached to previous order – Laim of compensation – Whether permission to add single storey garage in its particular site would cause substantial loss or disadvantage – Title Conditions (Scotland) Act 2003, Section 90(1)(a), 90(7)(a)(i)
The previous owners of the burdened property had achieved variation to permit the erection of a dwellinghouse (Ord v Mashford 2006 SLT (Lands Tr) 15). Following the building of the house, the new owners applied for a further variation to permit the erection of a double garage for which they had obtained planning permission. The benefited proprietors gave up their opposition to this, but sought various conditions, viz. limiting the building to a single-storey garage, limiting the height and limiting the roof pitch. The applicants argued that these conditions were unnecessary. The benefited proprietors also sought compensation. The application was disposed of on written submissions and a site inspection.
Held, (1) the conditions sought were appropriate: the previous order, with its conditions, would not cover this and the respondents were entitled to this degree of comfort in relation to the extent and use of this building. (Note: the benefited proprietors had also sought, but did not seek to insist on, a use restriction. The Tribunal expressed doubt whether this would be competent in the absence of the burdened proprietor’s consent – 2003 Act, S. 90(11) – and indicated that they would in any event be slow to impose a use condition when the original condition was a building restriction.); and
(2) the claim for compensation was refused. While no weight attached to the fact that the burdened proprietors had not sought compensation on the previous occasion, on the evidence the garage would ‘blend in’ to the surroundings and, considered objectively, not adversely affect the benefited subjects.
Authorities referred to: None
See full decision: LTS/TC/2007/28 and LTS/TC/2007/28 (Expenses)