Heritable Property – Title Conditions – Discharge or Variation – Disposition – Building restriction to single house – Similar restrictions in other estate dispositions – Proposal to build additional houses – Objection by original disponer –Reasonableness – Variation granted subject to conditions – Title Conditions (Scotland) Act 2003, Sections 98, 100

Alexandra McClumpha v Alexander Bradie
4 August 2009

Dispositions of houses on an estate developed in phases contained similar burdens restricting each property to a single house and garage. The owner of an extensive site on which one house had been built obtained outline planning permission for 4 more houses and applied for discharge. There had been corresponding developments in close proximity. The original developer who had granted the disposition and who still lived in the locality opposed the application. There was no objection from other potentially benefited neighbouring owners.

Dealing with the application on the basis of written submissions and a site inspection, the Tribunal were satisfied in the circumstances that it was reasonable to remove the restriction to one house, but considered it appropriate, rather than discharging the condition, to vary it to the extent of permitting 4 detached houses with approximately equal plot sizes, in order to preserve the character and amenity of the estate as it had been developed.

No authorities cited.

See full decision:  LTS/TC/2007/34