Heritable Property – Title Conditions – Discharge or Variation – 1977 deed of conditions prohibiting external alterations without superior’s consent – Neighbours benefited – Proposal for very substantial additions, increasing footprint by 130%, to modest chalet bungalow in small, attractively laid out development – Proposal considerably exceeding scale of alterations and extensions to other houses in development – Reasonableness – Refusal – Title Conditions (Scotland) Act 2003, Sections 98, 100

Margaret Cocozza v Lawrence Rutherford & Ors
2 May 2008

The subjects comprised an L-shaped chalet bungalow with 3 bedrooms and attached double garage, attractively set in a row of 11 similar and similarly aligned bungalows with gardens of varying sizes (the subjects’ garden being amongst the smallest) within one of several residential developments of widely varying character and value within the grounds of Gleneagles Hotel. A deed of conditions prohibited alterations to the external appearance of any of the premises except with the prior written consent of the superiors (the hotel company), such consent not to be unreasonably withheld. The applicant’s proposal, for which planning consent had been granted, involved extensions on all sides and very substantial additions to the accommodation, e.g. a substantial office/gym, a self-contained guest suite, a mezzanine level bedroom and a large upper level external terrace. The footprint would be increased by 130% and the floorspace by 168%. The parking area to the front of the subjects would be minimal, leading to overspill of parked cars into a common driveway. At this development, there were about 27 relatively small and modest houses of two complementary designs. There was a unity of design and decorative finish. Very nearly every house in this development had had some external alteration/extension, typically including conservatories, covered porches and smallish side extensions, all carefully matched in external appearance. The applicants’ proposal involved several new design features and its scale considerably exceeded anything at any of the other houses. Many of the neighbouring owners opposed her application to vary the title condition.

Held, refusing the application, it was accepted that the condition was directed more at the general amenity of the development than at the particular interests of neighbours, but the evidence showed a clear overall development concept and the title condition had the purpose of enabling the superior to control external alterations and extensions so as to preserve that concept although not absolute uniformity. Different characters had been achieved at the various developments by different types and levels of housing. The character of this development had not been lost or substantially affected by the alterations and extensions already carried out. The applicant’s proposal was of an altogether different scale and, in several respects, nature. It would substantially interfere with the unity and character. The submission that any adverse effect would be minimal was not accepted. The extended house would look out of place. There were some significant specific adverse effects on immediate neighbours. The condition preventing such development was of considerable benefit to the respondents. In considering the extent of the impediment, it was relevant that quite substantial extensions, in line with the other alterations made, would be unlikely to be opposed. The age of the condition was not significant. The planning decision had not involved consideration of the purpose of the title condition or the interests of the estate community and was of limited weight. This was not the sort of old condition, pre-dating planning legislation, which could be seen as simply the equivalent of modern planning. The small size of the applicant’s plot was another material factor. Overall, the Tribunal was not persuaded of the reasonableness of the application.

Cases referred to:-

Ness v Shannon 1978 SLT (Notes) 13
Ord v Mashford 2006 SLT (Lands Tr) 15
George Wimpey East Scotland Limited v Fleming 2006 SLT (Lands Tr) 2
Smith v Prior LTS/TC/2006/12, 17.11.2006
Anderson & Anr v McKinnon LTS/TC/2006/04, 12.1.2007
Church of Scotland Gen Trs v McLaren 2006 SLT (Lands Tr) 27
Brown & Anr v Richardson LTS/TC/2006/41, 8.5.2007

See full decision:  LTS/TC/2007/33