[1] This is an application under Section 90(1)(a) of the Title Conditions (Scotland) Act 2003 (“the Act”) for the discharge of certain title conditions. With the parties’ consent, the application is being disposed of without an oral hearing, in accordance with Rule 26 of the Lands Tribunal for Scotland Rules 2003. The Tribunal has considered the application and the respondent’s representations, together with some adjustments and correspondence, and has carried out a site inspection, at which neither party was present or represented. We are bound to say that certain matters have not been made entirely clear to us, but on the basis of the restricted scope of the application, as set out in the application and correspondence, we have had little difficulty in deciding that the title conditions, or (since we are not completely clear as to the validity of some of the conditions or how the respondents are benefited thereunder) the purported title conditions, should be varied in the restricted manner sought; and that the respondents have failed to demonstrate any basis for any award of compensation.
[2] The applicants are the registered proprietors of Cranesbill, Hazelbank, Lanark, their title being registered as LAN126120. Their application, as originally submitted, bore to be for complete discharge of certain real burdens which are noted in the Burdens Section of their Land Certificate.
[3] Firstly, in relation to “parking restriction”, the application sought complete discharge of the following condition in a Disposition by Sir Andrew Graham Gilchrist to Robert McMaster and his successors and assignees recorded on 21 May 1990:-
“It is specifically prohibited to use any part of the plots in front of the building line for the parking of any caravan, trailers, boats or commercial vehicle nor shall any vehicle be parked on the said ground except that where there is a garage drive this may be used for the temporary parking of one private car”
and also of the following condition in Feu Disposition by William Clelland and Son Limited to Francis Joseph Smith and spouse and their disponees registered on 3 November 1997:-
“And there shall be no parking of caravans, trailers, boats or commercial vehicles in front of the front building line of the said dwellinghouse and no vehicle shall be parked outside a garage on the subjects excepting on a temporary basis within the said area of driveway”.
[4] In adjustments and correspondence, however, the applicants have only insisted on and provided grounds for discharging the restriction to no more than one temporarily parked car on the driveway, i.e. the restrictions related to parking cars and not the prohibition of the other types of vehicle.
[5] Secondly, in relation to “Restriction on internal alterations to burdened property”, the application initially sought discharge of the following condition in the same Feu Disposition of 1997:-
“(Tertio) further additions after said date to the existing buildings and others on the subjects hereby disponed, or erection of new buildings and sheds thereon, or alteration of the external appearance of existing buildings and others, shall not be permitted without the prior consent in writing of us and our foresaids as Superiors.”
Clause Fifth of the Disposition of 1990 also includes provision in relation to alterations, as follows:-
“No additional buildings of any description shall be erected on the said plot of ground without the written consent of me or my foresaids and no structural alterations or additions shall be made on or to the building erected or to be erected without my prior written consent as aforesaid and which building shall always conform in all respects to any Local Authority Acts and Town and Country Planning (Scotland) Acts or otherwise.”
[6] Again, the applicants subsequently made clear that they are only concerned with the restriction on internal alterations.
[7] The respondent appears to have succeeded to the superiority interest and to have owned surrounding land, i.e. the small estate known as “Arthurs Crag” (or perhaps part of it), including a house called Chapelknowe which is in the immediate vicinity of the applicants’ house. Chapelknowe appears perhaps originally to have been the lodge for Arthur’s Crag. We are told that the respondent has sold and disponed Chapelknowe to another party since this application was lodged. The applicants’ house and one other house, Campion, also in the immediate vicinity, are substantial modern houses built relatively recently on plots sold by the estate. Neither the owners of Campion nor the new owner of Chapelknowe have indicated any opposition to this application.
[8] It is by no means clear to us firstly on what basis the conditions narrated from the Feu Disposition remain valid; or secondly, on what basis the respondent is benefited. However, we think, particularly as the result of our site inspection, that this application as restricted can be disposed of without difficulty even if the respondent were benefited as proprietor of the surrounding land and/or of Chapelknowe. We can exercise our jurisdiction over “purported” title conditions, and propose in the circumstances to do so.
[9] The respondent’s position is that he is willing, for a financial consideration, to permit the parking of private cars, or a trailer or a small boat; but also on the basis that a landscaping bund is reinstated to its intended height. In relation to compensation, he refers to loss of amenity and loss of value of his own land; and also to an increase in value of the applicants’ property.
[10] As far as the landscaping bund is concerned, firstly, on our inspection we found there to be such a substantial bund, combined with the land sloping sharply away from the applicants’ property, as to make cars parked on the driveway of the applicants’ property wholly invisible from any nearby part of the respondent’s land. No doubt there might possibly be some visibility from Chapelknowe but, leaving aside the fact that the respondent no longer owns Chapelknowe, we cannot conceive of this benefiting or having any effect on the amenity or value of Chapelknowe: the applicants’ substantial house might have such an effect but normal parking in its driveway could not in our view add to that. Secondly, if there is some obligation on the applicants in relation to a bund, the order sought by them would not affect that obligation.
[11] As far as compensation is concerned, there is in our view no basis at all for establishing any “substantial loss or disadvantage” caused to the respondent, or any effect produced by the title condition on the consideration paid for the burdened property (Section 90(7) of the Act). Nor is there any evidence of any increase in the value of the applicants’ property, a matter which, both under Conveyancing and Feudal Reform (Scotland) Act 1970 and the present Act, the Tribunal has never in any event considered relevant.
[12] We have had regard to the factors listed in Section 100 of the Act and are satisfied that the application in relation to the parking restriction, as now presented, is reasonable. We reject the respondent’s claim for compensation. We have accordingly made an order partially discharging the purported title conditions by deleting the restrictions contained in the Disposition and Feu Disposition in relation to parking private cars.
[13] The application is restricted to any effect which the title conditions have on internal alterations. The respondent does not consider that the condition affects internal alteration, to which he indicates he has no objection. Again, having had regard to the factors listed in Section 100, so far as there has been any reference to them, we are satisfied that this part of the application is reasonable and shall make an order varying the purported title conditions by declaring, for the avoidance of doubt, that the conditions do not impose any restriction on internal alteration of the “said buildings and others”. We note that the respondent no longer seeks compensation in relation to this part.
Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 7 December 2009
Neil M Tainsh – Clerk to the Tribunal