Heritable property – title condition – discharge – requirement of consent – variation to allow development on lines of planning permission – weight of right to control detail – impact on amenity of benefited subjects – Title Conditions (Scotland) 2003 sec 98 and 100

McGregor v Collins-Taylor
11 May 2009

An application was made for discharge of a title condition prohibiting erection of any dwellinghouse without consent of the respondent. The applicant had obtained outline planning permission for the construction of four dwellinghouses on the subjects. The respondent’s position was that he did not object in principle to the housing development but wished to retain his right to control the detail of it. He did not accept that the detail in the planning permission was sufficient basis for a decision. He had never seen the full detail of the applicant’s proposals, she had never asked for consent. Although he had never asked for further detail he did not consider that he was obliged to do so. It was up to her to put her proposals to him. The applicant agreed that no request for consent had been made but she took the view that, in light of the respondents outright hostility to he planning application, little purpose would served by a request which was bound to be refused. She agreed that a complete discharge was not required. A variation to allow construction on the lines of the planning permission would be sufficient.

HELD the substantive burden was to be seen as the prohibition on development and the circumstances relating to consent was a factor to be considered in terms of section 100(j); (2) having regard to all the factors mentioned in section 100 and in particular the various changes in circumstances and minimal impact on the benefited property, it was reasonable to grant a variation to allow the proposed development to proceed without consent. OBSERVED that as was not the practice of the Tribunal to vary under reference to the terms of the planning permission, the essential features of that permission were to be identified and included as part of the order.

See full decision:  LTS/TC/2007/32 (Merits) and LTS/TC/2007/32 (Expenses)