Heritable Property – Title Conditions – Discharge or variation – Retail units – Prohibition on sale of alcohol – Units unlet – Prospect of lease as local convenience store with off-sales – Relative extents of benefit and burden – Low level of opposition – Application granted subject to conditions – Title Conditions (Scotland) Act 2003, Sections 98, 100.

Matnic Ltd v Charles Armstrong
24 March 2009

Three retail units at a predominantly residential development were subject to the deed of conditions, which prohibited the erection of shops or other buildings for the sale of alcohol. One unit had been let and another partially let. Larger supermarkets were unlikely to be interested in the site. There was a prospect of letting as a local ‘convenience’ store. Only one owner of the flats above the units maintained opposition to the application.

Weighing the factors in Section 100 up, the Tribunal were not satisfied that it would be reasonable to discharge the burden in respect of the whole subjects, but were satisfied that it would be reasonable to relax it in relation to one small occupational unit with a reasonable limitation of hours. On that basis, any detrimental effect on amenity would be minimal. Such relaxation would not result in any serious compromise in the scheme of governance of the estate. The application to vary was accordingly granted, restricted to sale of wines, spirits and other excisable liquor ancillary to ‘Class 1’ use, at one occupational unit not exceeding 1500m2, not later than 8 p.m.

Authorities referred to: None.

See full decision:  LTS/TC/2008/46