Heritable Property – Title Conditions – Variation – Real burdens – Terrace house – 1870 Feu Charter as varied by 1945 waiver – Common scheme – Building restrictions and prohibition on sub-division and partial sale – Proposal to build house at mews – Burdens not prohibiting residential use – No previous mews houses, and further mews development likely if application granted – Extent of effect on benefited proprietors’ amenity – Benefit weighed against burden on applicants – Application granted – Title Conditions (Scotland) Act 2003, Ss 98, 100

Heritable Property – Title Conditions – Variation – Compensation – Building restrictions and prohibition on sub-division and partial sale – Burdens not prohibiting residential use – Proposal to build house at mews – Whether ‘substantial loss or disadvantage’ – Claimed effect on values of benefited properties – No substantial effect on value established – Title Conditions (Scotland) Act 2003, S. 90(6),(7)

Esplin & Baird v Higgitt & Ors
27 June 2008

The applicants were proprietors of the ground, basement and garden flat of a terraced house built around 1870 and split into two properties in 1945. Real burdens in the 1870 Feu Charter provided a common scheme for the terrace. There was a restriction on the dimensions of any ‘stables, offices and other buildings’ at the mews, prohibition of sub-division or partial sale. The 1945 waiver permitting the sub-division added a prohibition on building to the rear of the house except with superiors’ consent. There had been no previous residential development at the mews. The applicants had proposals, for which they had obtained detailed planning permission, along with the adjoining ground and basement flat owners, to build a mews house at the foot of each garden. At least one other such proprietor had a similar proposal. The objecting benefited proprietors were the double upper flat proprietor above the applicants, the owner of an immediately adjacent, undivided terrace house, and the proprietors of two upper flats on the other side. The rear of the terrace, looking north towards Edinburgh Castle, enjoyed splendid cityscape views, although there was a very substantial office development (Tanfield House) immediately to the rear. The respondents claimed compensation in the event of the application succeeding, and competing expert evidence was given by two valuation surveyors.

Held, (1) allowing the application, the existing burdens did permit limited building at the mews and, on the Tribunal’s analysis, did not provide at all for uniformity of such building, and also did not prohibit residential use, for example by servants, etc. The respondent who owned the whole house had a substantial, let out artist’s studio at the rear of her garden and also let out her basement. The objections related to, firstly, the principle of residential mews development in separate ownership (it being understood that allowing this application would open the door for other similar proposals), and, secondly, the physical extent of the proposed house, which slightly exceeded the original permitted depth and height. Tanfield House dominated the locality to the rear and was in the process of having its height raised by one floor. The proposed house, while closer, would make no substantial impact on this outlook. It would be at a considerable distance from, and lower than, the houses, and very much a secondary building. Compared with the current random pattern of garages, artist’s studio, etc, the impact would be not significantly different from what was presently permitted. There would only be a very slight effect on privacy, the garden of the principal objector’s whole house already being substantially overlooked from the rear of the terrace houses. The suggestion that residential mews development would have a substantial effect on traffic and parking in the mews lane was, on the evidence, rejected. Weighing all the factors listed in Section 100 up in the light of the extent and scope of the title condition and the particular proposals, and also considering the slightly different situations among the respondents, the Tribunal was satisfied that it was reasonable to vary the title conditions to the extent of permitting the proposed development; and

(2) refusing the claims for compensation, the claims involved comparison with the position under the existing burdens. The hypothetical purchaser would know that they only restricted the dimension of building at the mews and did not prohibit residential use, and also that the existing outlook towards the foot of the gardens was dominated by Tanfield House. There would in the Tribunal’s view clearly be no effect on the value of the upper flats, which had no rights in relation to the garden areas and which were so elevated from the site of the proposed house as to be unaffected. The adjoining whole house and garden required separate consideration. A positive ‘hope value’ effect was possible, and on the basis of its view of the impact of the proposed house on the amenity enjoyed the Tribunal was not persuaded that the market would reflect the loss of protection against this development, in comparison with what was permitted at present, in any substantial way.

Authorities referred to:-

Ord v Mashford 2006 SLT (Lands Tr) 15
George Wimpey East Scotland Ltd v Fleming 2006 SLT (Lands Tr) 2
Church of Scotland General Trustees v McLaren 2006 SLT (Lands Tr) 27
Macpherson & Fraser v Mackie and Others, 2007 CSIH 7 (Extra Div, Court of Session)
Brown v Richardson LTS/TC/2006/41
Smith v Prior and Ors LTS/TC/2006/06
Anderson & Anr v McKinnon LTS/TC/2006/4
Ness v Shannon and Ors 1978 SLT (Lands Tr) 13
West Coast Property Developments Ltd v Clarke & Ors (merits) LTS/TC/2005/21
J & L Leisure Ltd v Shaw LTS/TC/2005/12

See full decision:  LTS/TC/2007/48 (Merits) and LTS/TC/2007/48 (Expenses)