Heritable Property – Title Conditions – Variation – Deed of conditions prohibiting structural alterations without consent – Basement flat – Proposals involving structural alteration – Opposition by proprietors in building – Risk of damage to building – Reasonableness – Enjoyment of property impeded to extent that removal of two particular lengths of wall prevented – Assessment of risk on basis of adequate supervision of structural works – Circumstances in which decision deferred to allow time for monitoring of recent cracks in building and for the applicant to consider position further – Title Conditions (Scotland) Act 2003, Ss. 98, 100<

Lackie v Sloss and Others
1 May 2008

A 1990 deed of conditions, executed following the sub-division of an old terraced house into 4 flats, prohibited structural or external alteration without superior’s consent. This burden was admittedly enforceable as a community burden by each of the flat proprietors. The applicant owned the basement flat, and proposed to remove various walls to improve the layout and enlarge the useable accommodation. She had planning consent and a building warrant. The remaining flat proprietors opposed her application for variation, suggesting reasons for concern, particularly at the removal of two lengths of wall which supported walls running up the full height of the building. The proposed work had been competently designed by specialist engineers. Structural engineers were agreed that such works required to be carried out carefully and under supervision and in any event carried some risk, reasonably assessed at up to 20%, of cosmetic damage. In relation to the possibility of more serious problems, the respondents referred to the existence of an unexplained old lateral buttress in a close ground floor area, and to cracking higher in the building, including some recently discovered cracking, at several parts of the building. The building itself appeared to be in good overall structural condition. There was agreement that monitoring of the recent cracking would be appropriate, and that if the application were granted, various conditions about that, supervision of the works, indemnity for any damage, etc. would be appropriate.

Held, on the information as it stood, the application would have been refused, unless the proposed works on the two stretches of structural walls (“the structural works”) were withdrawn, but in the particular circumstances a decision should be deferred. The burden had a very clear purpose, in the interests of the flat proprietors, and, being imposed in 1990, was not simply a fore-runner of modern planning and building controls. Having regard to a limited express ius quaesitum tertio, the legal position prior to the 2003 Act was slightly uncertain, but in any event the change then did not represent a material change of circumstances because the superior would have been likely to take account of views of the other proprietors about proposals requiring consent. The benefit to the respondents was in preventing works involving a risk of damage. On the basis that the application would have been granted if the structural works were taken out, the extent of the burden was limited to not being able to proceed with the structural works. The engineering experts were generally agreed that there was a risk of cosmetic damage from such works generally at a building such as this, even with adequate supervision. The condition, however, was primarily directed at the structural integrity of the building. The Tribunal did not consider that there was any reasonable concern resulting from the old buttress: the engineers would consider that further and if necessary modify the design of the structural works. As regards the recent cracking, this was unexplained. The experts disagreed as to whether, being some way away in the building, it might be affected by the structural works, but concern arising from one expert’s view that traumatic works might have some effect at existing points of weakness in the building was reasonable. For that reason, the application would have been refused on the material before the Tribunal. However, the cracking had only recently been discovered and relied on by the respondents. There had been problems about arranging a meeting between the experts. It was agreed that some monitoring of these cracks would in any event be useful. In the particular circumstances, the Tribunal decided to defer a decision, giving the applicant the options of removing the structural works from her proposals, continuing with the full application after a period of monitoring or withdrawing the application.

Authorities referred to:-

Turner v Hamilton (1890) 17R 494
Lawrence v Scott 1965 SC 403
MacTaggart v Campbell LTS/LO/2000/23
George Wimpey East Scotland v Fleming and Others 2006 SLT (Lands Tr) 2
Ord v Mashford 2006 SLT (Lands Tr) 15
Daly v Bryce LTS/TC/2005/15, 28.4.2006
Brown v Richardson LTS/TC/2006/41, 8.5.2007

See full decision:  LTS/TC/2007/30