Heritable Property – Title Conditions – Variation – Downstairs shop premises split from flat above – Prohibition of business use for frying fish or chips – Premises used for some year as café/bistro with limited frying of chips, without substantial opposition from upstairs proprietors – Variation to permit chips – Reasonableness – Terms of order – Title Conditions (Scotland ) Act 2003, Sections 98, 100

Hooper and Another v Sinclair and Another
11 September 2008

Premises comprising a shop with small upstairs flat had been split in 1950, at which time a title condition had been imposed on the shop premises, prohibiting business use for frying fish and/or chips. The premises had for some years been used as a café, including, since 2003, use of a small deep fat fish dryer for which planning permission had been obtained. The upstairs proprietor had not opposed planning permission, had very occasionally complained but had not taken any other steps to enforce the condition. A potential purchaser required the condition to be varied so as to allow the frying of chips.

Held, granting the application, the purpose of this very specific condition was clearly to prevent the premises being used as a fish and chip shop, for the protection of the amenity of the upper flat. That purpose remained good. The use of the subjects as a café, consistent with the condition, was a relevant change of circumstances supporting the reasonableness of limited chip frying. Modern ventilation, etc., apparatus rendered at least a small fryer much more tolerable, and such use since 2003 appeared not to have caused substantial problems. Weighing the statutory factors up, the protection to which the upper flat proprietors were reasonably entitled could be preserved by a condition protecting against a substantial change in the nature of the frying, making the application, which related only to chips, reasonable. The application was accordingly granted subject to a condition limiting the capacity of the fryer to a specific volume around that of the fryer which had already been installed and used.

See full decision:  LTS/TC/2008/13