Heritable Property – Title Conditions – Variation – Building restriction – Variation to allow erection of double garage – Previous refusal of application to erect 2 semi-detached houses – Reasonableness – Purpose of condition to protect special amenity and character and outlook from other houses in terrace – Assessment following site visit of extent of effect on amenity – Changes of circumstances since condition created – Title Conditions (Scotland) Act 2003, Sections 98,100

Heritable Property – Title Conditions – Variation – Expenses – Successful application – Allegation of failure to afford opportunity for discussion, etc., which might have led to agreement – Circumstances in which applicants’ conduct of proceedings held reasonable and expenses awarded – Title Conditions (Scotland) Act 2003, Section 103(1)

Blackman and Matheson v Best and Others
28 January and 15 May 2008

A 1934 title condition, admittedly enforceable by at least several other houseowners in the terrace, prohibited building on the subjects except a greenhouse of specified maximum dimensions. An application under the 1970 Act to permit 2 semi-detached houses on the subjects had been opposed and refused in 2000 (Brown v Denny & Others), the Tribunal having found that the purpose of the condition was to preserve the special amenity and character of the street and to protect the outlook from the terrace on the other side of the street. The present applicants had subsequently obtained planning permission for and built a very modern house on immediately adjoining land, and now sought variation of the condition so as to permit the erection of a double garage (somewhat larger than the permitted dimensions of a greenhouse) in the same modern style. There was another very modern house in the immediate vicinity. This application was disposed of on the basis of written submissions and a site inspection.

The application having been successful, the applicants sought expenses. The respondents opposed (or at least sought modification), mainly on the ground that disapproval should be shown of the applicants’ failure to afford an opportunity for discussion of the proposal or attempt to discuss the matter. The procedure followed by the applicants prior to their application for planning consent for the house, involving consultation well in advance and, it was said, leading to minimal opposition, was contrasted with the limited steps taken on this occasion, and it was suggested that such consultation this time may have led to agreement.

Held, (1), granting the application, the Tribunal accepted that the previous Tribunal’s view of the purpose of the condition remained good and was again the appropriate starting point, making the issue very much one of assessment of the effect which the proposed garage would have on the amenity of the houses. Following the site visit, and also assisted by agreed photomontages of what the garage on its proposed site towards one corner at the rear of the site would look like, the Tribunal considered that this proposal would have only a minimal effect: the subjects would remain as an attractive green area playing a very important part in the amenity of the street. The extent of benefit to the benefited proprietors was accordingly minimal. There were relevant changes of circumstances at the subjects and in their immediate setting. It would have been difficult for the respondents to resist a garage of the same size as the permitted greenhouse. Overall, the application was reasonable.

(2) the applicants would be awarded expenses, without modification. On a consideration of what the applicants had actually done, involving a letter around the neighbours shortly before intimation of the planning consent and a willingness to discuss with those neighbours who responded, their conduct of the proceedings could not be categorized as unreasonable. Any agreement would have required to be with all of the objecting benefited proprietors, and this seemed unlikely. Other matters relied on, such as the respondents’ situation as long-standing benefited proprietors, were not relevant.

Cases referred to:-

Brown v Denny & Ors, LTS/LO/1999/25, 31.3.2000
Railtrack plc v Aberdeen Harbour Board, LTS/LO/2001/13 etc, 17.12.2001
Ord v Mashford 2006 SLT (Lands Tr) 15
George Wimpey East Scotland Limited v Fleming 2006 SLT (Lands Tr) 2
Smith v Prior & Ors, LTS/TC/2006/06, 17.11.2006
Anderson & An’r v McKinnon, LTS/TC/2006/04, 12.1.2007
Brown v Richardson & An’r, LTS/TC/2006/41, 8.5.2007
Graham & Fletcher v Parker, LTS/TC/2006/25, 14.3.2007

See full decision:  LTS/TC/2007/29 and LTS/TC/2007/29 (Expenses)