Heritable Property – Title Conditions – Discharge or Variation – Prohibitions of sub-division and occupation by more than one family – Upper flat proprietor in Victorian villa proposing to convert basement storage accommodation into separate flat – Opposition by lower flat proprietor and neighbour – Reasonableness – Onus where burden more than 100 years old – Purpose – Relevance of assertions that proposal would encroach on proprietorial rights – Extent and relevance of changes of circumstances in neighbourhood – Title Conditions (Scotland) Act 2003, Sections 98, 100.

Margaret-Anne Melville v Norna Crabbe and Another
19 January 2009

An 1880 feu contract regulated building of two villas, each divided into an upper and a lower flat. Sub-division and occupation by more than one family were prohibited. Each flat had some limited basement storage accommodation which had originally included servants’ accommodation. An upper flat proprietor sought discharge to enable her to proceed to develop her basement area as a separate flat for sale. She had obtained planning permission but not yet a building warrant. She submitted that the issue ought not to be decided by reference to an onus on either party, because the conditions were old enough to be subject to the ‘Sunset’ rule. She argued that the purpose of the conditions was early town planning and not the protection of private amenity, and relied on the extent of sub-division in the locality as a relevant change of circumstances. Benefit to the lower flat was incidental and suggested effects of the proposed development would be addressed by compliance with building regulations. The burden substantially impeded the enjoyment of her property. The lower flat proprietor argued that there was no material showing any intention to form part of any wider feuing scheme, and preservation of private amenity at these two villas was a significant purpose. There had been no other conversion at a similar private amenity scheme. There would be a significant reduction in value of the lower flat. There were real and significant issues about the design and construction. The title conditions did not render the basement sterile. In any event the respondent had made clear that she would use proprietorial rights to prevent the development. Parties were agreed that if the title conditions were relaxed to permit the proposed development the value of the lower flat would be reduced by 8.75%.

Held, refusing the application, the applicant’s submission on onus could not be accepted: it was clear from the statutory provisions that the Tribunal required to be satisfied that it would be reasonable to grant the application, although the age of the conditions was a legitimate consideration. The conditions did exhibit the type of planning control by superiors which was formerly prevalent, but there was also a purpose of maintaining private amenity at the particular location and the superior had not reserved the right to waive. Although there had been substantial sub-division in the locality, this proposal was unusual in involving residential development of a basement area owned with an upper flat. The proposal involved significant structural change, in which the lower flat proprietor had a reasonable interest. The conditions created significant benefit for the lower flat, which would be affected in a number of ways by the proposed development, although it would in the particular circumstances be unreasonable to give much weight to the lower flat proprietor’s intention to use all technical arguments to prevent the development. On balance, it has not been shown that the application was reasonable.

Authorities relied on:-

Bolton v Aberdeen Corporation 1972 SLT (Lands Tr) 26
Solway Cedar Ltd v Henry 1972 SLT (Lands Tr) 42
Bachoo v George Wimpey & Co Ltd 1977 SLT (Lands Tr) 2
British Bakeries (Scotland) Ltd v City of Edinburgh District Council 1990 SLT (Lands Tr) 33
George Wimpey East Scotland Ltd v Fleming 2006 SLT (Lands Tr) 2
Ord v Mashford 2006 SLT (Lands Tr) 15
Church of Scotland General Trustees v McLaren 2006 SLT (Lands Tr) 27
Donnelly & Regan v Mullen & Ors, 17.2.2006, LTS/TC/2005/1
Daly v Bryce, 28.4.2006, LTS/TC/2005/15
West Coast Property Developments Ltd v Clarke & Others, 28.6.2006, LTS/TC/2005/21
Smith v Prior & Others, 17.11.2006,LTS/TC/2006/06
Smith v Elrick & Another, 20.11.2006, LTS/TC/2006/14
McPherson & Fraser v Mackie 2007 SCLR 351
Anderson v McKinnon, 12.1.2007, LTS/TC/2006/04
Brown v Richardson, 8.5.2007, LTS/TC/2006/41
Rennie, Land Tenure in Scotland, para. 13-27

See full decision:  LTS/TC/2007/42 (Merits) and LTS/TC/2007/42 (Expenses)