Introduction and Summary
1. This is an application, under Section 90(1)(a) of the Title Conditions (Scotland) Act 2003, (“the Act”), to discharge, or alternatively declare invalid and unenforceable, a title condition. The condition is a real burden involving a restriction on parking imposed when ownership of property which included a historic house and outbuildings converted into a separate dwelling house was split. Ownership of an attractive central courtyard between the two dwellings was divided. The applicants were the first disponees and were prohibited from parking “with the exception of setting down temporarily” within a specified area in the courtyard. The respondent is the second disponee. Her title did not contain a similar restriction in relation to the part of the courtyard conveyed to her, but the applicants contended that the parking restriction in their title was part of a mutual scheme under which both properties were to have been subject to similar restrictions, in order to preserve the amenity of the courtyard for the benefit of both. The respondent disputed this and did not accept that it would be reasonable to discharge the condition. She maintained that the restriction was for the benefit of her property alone and that she was entitled to use her part of the courtyard for parking and indeed did so.
2. In summary, the Tribunal has decided as follows:-
(i) The Tribunal rejects a submission on behalf of the respondent that the application was premature and the Tribunal had no jurisdiction because the Keeper of the Registers had not yet issued land certificates in respect of the two properties;
(ii) The Tribunal rejects the applicant’s submission that the condition would be unenforceable for lack of precision, but determines that the condition is unenforceable because (a) an obligation to insert a similar condition in relation to the retained subjects has not been complied with; and (b) in the particular circumstances, failure to comply with the condition would not in any event result in material detriment to the value or enjoyment of the respondent’s ownership of her property; and
(iii) It is reasonable to grant the application.
The Title Condition
3. A Disposition dated 16 August 2004 by Dr Casper Wrede and Dr Orla Wrede in favour of Kevin Clark and Leigh Berridge, the applicants, provided inter alia:-
“Our disponees shall be prohibited from parking vehicles on the area cross hatched with the exception of setting down temporarily and we hereby bind ourselves to insert a similar condition in any future deeds, transmissions or investitures of or relating to the retained subjects under pain of nullity”.
Procedure
4. The application was considered at an oral hearing. The applicants were represented by Mr Kydd, solicitor, of Messrs Thorntons, Dundee, who called the applicant Ms Berridge as a witness. The respondent was represented by Mr Williams, solicitor, of Messrs Baird & Company, Cupar, who called the respondent as a witness. Both sides also relied on documentary productions, which were generally accepted as being what they bore to be. The Tribunal conducted an unaccompanied site inspection.
5. The respondent’s productions included copies of (apparently all of) the missives for the two purchases, by the applicants in 2004 and by the respondent in 2005, from Drs Wrede, the original proprietors of the whole property. At the commencement of the hearing, Mr Williams, whose firm had also acted on behalf of the sellers in both transactions, sought the Tribunal’s leave to produce late a number of documents which he had selected from his firm’s file. These were said to be relevant in connection with the contention that reference in the condition to an obligation to insert a similar condition was not intended to relate to this condition. After hearing submissions, the Tribunal refused to admit these late productions on the grounds that they were of doubtful relevancy and their production was prejudicial to the applicants, whose solicitors had had no opportunity to consider the whole of the files in question or investigate the matter with the solicitors (not Mr Kydd’s firm) who had acted on the applicant’s behalf in the purchase. Mr Williams made assertions about this mistake in the course of his submissions but neither he nor anyone else involved at the time gave oral evidence about it.
Authorities relied on
The Facts
6. The Tribunal found the following facts to have been admitted or proved.
7. Pitlessie, Fife, is a small residential village. Until 2004, Pitlessie House, Pitlessie, was a single property in the ownership of Dr Casper Wrede and his wife, Dr Orla Wrede. It comprised a historic five bedroom house with gardens including a small orchard, outbuildings and an attractive gravelled central courtyard. This courtyard is situated between the house and the outbuildings and features a roundel with a large willow tree set in a grassed bed close to the centre of the courtyard. These owners converted the larger part of the outbuildings into a three bedroom dwellinghouse and then set about selling the property either as a whole or in two lots. Lot 1 would comprise Pitlessie House (“the House”) and garden, the nearest part of the outbuildings containing a garage and workshop, the orchard and around three quarters of the central courtyard. Lot 2 would comprise the new dwellinghouse in the outbuildings, now called ‘The Maltings’ (“the Maltings”) together with relatively small areas of ground around the house, including around one quarter of the courtyard.
8. The courtyard is dressed in red whin chips and continues round to the eastern side of the House. It provides an attractive amenity setting for both the House and the Maltings.
9. Access to Pitlessie House had originally been taken directly off the A914 road, on the south-east side, but that had been discouraged by the local authority. The Maltings is situated on the north-west side of the site. The only vehicular access to both houses is now by another drive, towards the south-west, leading from the courtyard to a local service street, The Wynd. Although the corner of the outbuildings obtrudes slightly into the line of this drive, sight lines from and to The Wynd are adequate and this entrance is perfectly adequate and safe for normal domestic and occasional business traffic accessing either house. Lot 2 would include a right of access via this drive leading to a strip of ground on the south-west side of the outbuilding and also across part of the House section of the courtyard.
10. The applicants purchased Lot 2, the Maltings, in 2004. There was an extensive period of negotiation of missives. There were various proposals, including, initially, that the owners of the Maltings would be prohibited from erecting any fence separating the properties but the owners of the House would retain an option to do so. The applicants were concerned about the amenity of the courtyard area but also wished to have vehicular access across it. The applicants met a representative of the sellers at the site. There was an understanding on both sides that the courtyard area should be kept ‘open plan’ for the benefit of both. Missives were concluded on the basis that both owners would be prohibited from erecting any fence on the boundary, and that the Maltings owners would be prohibited from parking in a specified area (“the prohibited area”) which was the whole of the part of the courtyard conveyed to them and which is about 6 metres wide. The missives contained no provision to the effect that a similar prohibition would be placed on the House owners.
11. The disposition of The Maltings, together with the right of access across the drive and over a specified area of the retained part of courtyard, provided inter alia as follows:-
“(ONE) our disponees and their foresaids and our successors as proprietor of the retained subjects shall for all time coming, be prohibited from erecting any fence or fixed boundary between the subjects hereby disponed and the retained subjects, (TWO) our disponees shall be prohibited from parking vehicles on the area cross hatched with the exception of setting down temporarily and we hereby bind ourselves to insert a similar condition in any future deeds, transmissions or investitures of or relating to the retained subjects under pain of nullity; all of which reservations, burdens, conditions and others are hereby declared to be real burdens upon and affecting the burdened property hereby disponed and shall be repeated at length or validly referred to in any future deeds transmissions or investitures of or relating to the subjects hereby disponed, failing which same shall be null and void; Declaring that the aforesaid reservations and real burdens are hereby created for the benefit of the following property namely (First) ALL and WHOLE the subjects known as Pitlessie House, Pitlessie registered in the Land Register of Scotland under Title Number FFE41819 under exception of the subjects hereby disponed (the benefited property)”.
12. The House stood vacant until purchased by the respondent in 2005. A sales brochure for the House alone made reference to the courtyard and to the Maltings, which was described as “an attractive single residential unit, recently converted and restored, improving the general ambiance of the courtyard”. Reference was made to the parking restriction on the Maltings. There was no suggestion that the House would be subject to similar restriction. No such restriction was inserted in the respondent’s title, although the disposition in favour of the applicants had been exhibited in the course of the missives. The disposition dated 15 July 2005 in favour of the respondent includes the following provision:-
“BUT ALWAYS WITH AND UNDER the following burden that proprietors of Pitlessie House, aforesaid are prohibited for all time coming from erecting a fence or otherwise delineating their northmost boundary which boundary adjoins the adjacent property known as and forming The Malting at Pitlessie, aforesaid which burden is declared to be a burden on the subjects hereby disponed and to benefit the subjects registered in the Land Register of Scotland under Title Number FFE72484”.
13. Neither the applicants nor the respondent have yet been issued with any land certificate. Receipt of the applications of each for registration has been confirmed and each has an allocated title number. The reason for this apparent failure to settle the two registrations was not known.
14. On the House side, the courtyard continues round to the eastern side of the house as far as the former entrance from the main road. On the Maltings side, the courtyard leads directly to a small strip on its north-east side. Apart from the courtyard, the House has or could have accessible parking space in the retained double garage in the outbuilding and in the gravelled area to the east. The Maltings has or could have accessible parking space to its north-east and also on a strip of ground on its south-west side. Parking is also available on The Wynd, immediately outside the driveway entrance.
15. The applicants initially used the strip of ground on the south-west side of the Maltings, accessed without entering the courtyard, to park. This is not wide enough to take two cars side by side but could take two cars end on. The applicants, however, found this area inconvenient for parking. They erected a fence at the boundary in this area and developed it as additional garden ground. They then developed the strip on the other, north-east, side of the Maltings, accessed from the courtyard and not part of the prohibited area, as their parking area. This parking area is about 7 metres wide and 8.5 metres long. The respondent uses her part of the courtyard for parking up to about four vehicles, and also sometimes uses her double garage.
16. The applicants subsequently secured planning permission to convert space in the Maltings into two further bedrooms, making this also a five bedroomed house. The respondent, however, was unsuccessful in an application to convert the garage and workshop, adjoining the Maltings, into another residential unit. She appealed this decision. The principal reasons given by the Reporter for refusing the appeal were vehicle congestion and possible conflict between vehicles and pedestrians as well as failure to comply with existing Development Plans.
Applicants’ Submissions
17. Mr Kydd addressed first the application for discharge. He referred to the Tribunals’ observations in Ord v Mashford on the reasonableness test. On the factors listed in Section 100, he submitted, in summary:-
(a) There were two changes of circumstances, the parking of cars on the courtyard, contrary to the understood purpose of the condition; and the fact that the applicants chose not to park in the original parking area because they found it unsatisfactory;
(b) It was difficult to see what amenity would be lost when there was already so much parking in the courtyard; and there would be no danger from parking, as opposed to setting down, in the prohibited area;
(c) The condition impeded the applicants’ enjoyment of their property, the prohibited area being the natural place for them to park; and ‘temporarily’ was uncertain and subjective;
(d) It was inconvenient for visitors to comply with the obligation;
(e) It was approximately 5 years since the condition was created;
(f) The purpose was to keep the courtyard open plan for mutual benefit, but the purpose was defeated if only one party was bound by the parking restriction;
(g) No reliance;
(h) Neutral;
(i) Inapplicable; and
(j) The applicants’ proposal would remove uncertainty and would be a reasonable use of the property.
Mr Kydd argued that anyone reading the disposition would come to the reasonable conclusion that something was going to be inserted in to the Pitlessie House disposition.
18. Turning to the application under Section 90(1)(a)(ii), Mr Kydd submitted that the Tribunal need not go outwith the terms of the deed with its statement that a similar condition would be inserted under pain of nullity. He submitted that the provision did not satisfy the requirements set out in Tailors of Aberdeen v Coutts. Section 2(5) of the Act did not solve the fundamental problem that ‘temporarily’ can only be interpreted subjectively – c.f. Lothian R. C. v Rennie, per, Lord McDonald at 223. Further, the respondent did not have interest to enforce under the test in section 8(3)(a). Reference was made to the opinion of the Sheriff Principal on ‘material detriment’ in Barker v Lewis: there had to be more than just personal annoyance or sentimental detriment and it was difficult to see what level of detriment there could be in this case, although the situation would be different if the rest of the courtyard was being kept free.
19. Replying on the ‘prematurity’ point, Mr Kydd referred to Section 4 of the 1979 Act and submitted that the subjects were registered although the title sheet had not yet been issued. All parties seemed to believe that the condition was in force.
Respondent’s Submissions
20. Mr Williams first argued that, with no land certificate having been issued, the application was premature and the Tribunal had no jurisdiction. He referred to Section 3(1) of the Land Registration (Scotland) Act 1979 in relation to the effect of registration. There being not yet any effective burden, there was no ‘title condition (or purported title condition)’ in terms of Section 90(1)(a) of the Act.
21. Next, Mr Williams outlined the respondent’s position on the facts in relation to the missives of sale to the applicants, which contradicted Ms Berridge’s evidence in that they did not contain any stipulation for a similar condition to be inserted when the House was sold. He accepted, however, that the terms of the disposition supported the applicants’ position. The key aspect had been the lack of amenity to the Maltings if the owners of the House were entitled to build a fence. The final provision of the missives was the alternative agreement reached, viz. the prohibition on parking in the Maltings without any similar prohibition on the House. The obligation to insert the similar condition should have been inserted in Condition (One). The disposition did not have weight because everything would flow from the land certificate.
22. Mr Williams referred to three matters relied on by the respondent on interest to enforce: the danger of added traffic; the loss of amenity; and the diminution in value of her property.
23. On the reasonableness of the discharge application, Mr Williams said that this condition should be considered as a neighbour burden. He also referred to Ord v Mashford, in relation to the intention to provide an amenity benefit. There would be increased traffic movement. It was pertinent that the Reporter had decided against the respondent’s planning application, in the interests of the amenity of the Maltings. The intention of the condition was to restrict the amenity of the Maltings to the benefit of the House. Mr Williams accepted that there might be very little difference between setting down and parking. It was disingenuous to suggest that ‘temporarily’ could not be understood. The applicants had limited their options in relation to parking. It would be very easy to use the area behind the garage for guests to park. It was unreasonable of the applicants, having engaged in the process of arriving at the title condition, to change their mind. There was significant amenity benefit to the respondent from the condition.
Tribunal’s Consideration
24. General. This is an unfortunate, and it might be thought petty, dispute about parking. It appears that there have been unpleasant incidents involving the parties. Perhaps there have been misconceptions about the legal position. However, we have to consider the title position objectively and we have made no findings about such incidents or the responsibility for them. Nor was it necessary to explore the extent of parking in the courtyard by the respondent or her visitors: the respondent accepted that she makes substantial use of her part of the courtyard area for parking and indeed sees nothing wrong with such use. The documentary materials also indicated a factual dispute as to whether the House had been used by the respondent as a guest house. We did not find it necessary to explore that dispute.
25. While the oral and extrinsic documentary evidence does not in our view assist in construing this title condition, it was appropriate, in connection with the application for discharge as well as the issues about enforceability, to hear oral evidence from both Ms Berridge and the respondent, and indeed to consider documentary evidence properly before us. As in many cases under this jurisdiction, our own site inspection was of considerable importance. As far as the credibility and reliability of the two witnesses were concerned, Ms Berridge appeared to us generally to give her evidence in a straightforward and honest way but we were slightly suspicious of her laboured and repetitive assertions to the effect that it was understood that the sellers were to impose a similar condition on the purchaser of the House. As far as the respondent is concerned, we felt that she gave evidence in a somewhat dogmatic and assertive way. She was keen to assert her views on matters, such as the agreement made between the sellers and the applicants and the legal effect of that agreement, on which she was not really qualified to speak. She did not appear willing to entertain the possibility that the title arrangements might reflect the interests of the Maltings owners as well as herself as purchaser of the House. Her assertions about the unavailability of alternative parking space, and about the issue of safety, conflicted with our impressions on viewing the site.
26. The context of this dispute is that there are two five bedroomed dwellinghouses each of which might well see some use involving vehicles by family members, visitors or indeed a variety of possible businesses conducted by the owner from home. There is no use restriction in the title of either. The courtyard area undoubtedly contributes substantially to the attraction of both houses, giving each a most attractive setting. Parking in the area detracts from the setting of the two houses, although this is obviously a matter of frequency and degree. While it is undoubtedly true that the outbuildings were subservient or accessory to the House, they now mainly comprise an attractive and valuable dwellinghouse whose amenity is considerably enhanced by the courtyard setting and affected by parking in the courtyard. In that situation, it is not surprising to find an arrangement prohibiting or restricting parking in the courtyard, and such an arrangement appears to us appropriate.
27. We are of the clear view that parking in the larger part of the courtyard, in the ownership of the House, is liable to detract from the amenity of the courtyard. Prohibiting parking only in the area of the courtyard within the ownership of the Maltings does little or nothing for the amenity of either house if parking in the larger area is permitted. In arriving at this view, we do not ignore the respondent’s evidence that there are public rooms at that side of the House and that parking in front of the Maltings is visible from these rooms. We can accept that, although the exact view will no doubt depend on the position of the viewer, but we think that assessment of the amenity value of the courtyard setting calls for a more general approach: it is the external setting of the House to which the courtyard particularly contributes.
28. We do not consider that safety is a material issue. Obviously, care is required when children or pets may be present, but we do not consider that the difference between allowing parking and only allowing setting down in the prohibited area will have any net effect on the volume of traffic over the drive and courtyard. Reference was made to the reasoning of the Reporter who refused the respondent’s planning application to convert the double garage and workshop into another dwellinghouse. We do not think this assists us: what was there under consideration was the effect of increased traffic and parking if the double garage were removed and another residential unit created.
29. We cannot see that the parking restriction causes much inconvenience to the applicants. They have two other possible parking areas to choose from. Of course it is marginally less convenient to have to park slightly further from the front door, but even that is offset by the qualification that ‘setting down’ is permitted. The applicants did after all agree to the restriction when they purchased the house just a few years ago.
30. The legal effect of the present title provision is a matter of construction of the relevant title, in this case the disposition in the applicants’ favour (subject of course to the Tribunal’s jurisdiction to discharge). No doubt the real burden will take its effect, once registered, from its narration in the registered title sheet. The obligation on the sellers, however, did not require such formalization, and must turn on the disposition rather than the foregoing missives. In our opinion, the clear meaning of that provision is in line with our general view of what would be appropriate, and is that the sellers were taken bound to impose a similar parking restriction, i.e. a prohibition of parking, except setting down, on a corresponding area of the courtyard when this was conveyed to a purchaser of the House. The argument that this obligation related to the earlier condition, Condition (One), relating to erection of a fence, does not in our view stand up. Condition (One), as expressed, was the same condition, a prohibition against erection of a fence on the boundary between the subjects, in each disposition. This obligation clearly reads as relating to condition (Two) and necessarily refers to a ‘similar’, rather than the same, condition. It could not be the same condition because it would be beyond the power of the sellers in the second sale to impose a burden over land which they had previously conveyed. Condition (One) was expressed as applying to both subjects, whereas Condition (Two) could only refer to inserting a similar condition in the later dealing. The obligation to do so was purportedly strengthened by the final words, “under pain of nullity”, although we note that Mr Kydd did not in his submissions to us elaborate on the precise effect, if any, of those words. We appreciate that the exact extent of the area of courtyard conveyed to the purchasers of the House which was to be made subject to the corresponding prohibition on parking was not specified, but the obligation to insert a similar condition was not itself a real burden. The strict requirement, in constituting a valid real burden, in relation to the area affected, would not apply to this obligation.
31. Mr Williams accepted that this was how the provision reads, but asserted that it was a mistake: the obligation was intended to apply in relation to Condition (One), not Condition (Two). Apart from a letter written by his firm but not spoken to, we heard no evidence of this, and Ms Berridge disputed it. The fact that the missives in the sale to the applicants did not refer to this obligation is in our view irrelevant in construing the disposition, as is the actual provision in the second disposition. The measure of the parties’ agreement is the disposition delivered to and accepted by the applicants. We are not in a position to decide as a matter of fact whether or not there was some mistake, but even if there was, the parties’ agreement was still as expressed in the disposition. We have to consider the issues which arise for decision on the basis that there was agreement that the sellers would insert a similar condition creating a real burden in which the House would be burdened and the Maltings benefited. They failed to comply with this obligation and have of course disabled themselves from doing so, and there is now no question of the applicants being able to enforce any parking restriction against the respondent: c.f. Anderson v Dickie. Furthermore, the factual position is that the present owner of the House does not accept any such restriction on parking by her and her visitors. Other owners of the House might take a different view, particularly as there is an alternative gravelled area available for parking for the House, but they would be under no obligation.
32. ‘Prematurity’. No notice had been given of Mr Williams’ argument about prematurity going to the Tribunal’s jurisdiction, and, other than a reference to Section 3(1) of the Land Registration (Scotland) Act 1979, he advanced no authority in support of it. Had we been inclined to accept the argument, we would have continued the case to enable investigation of the situation regarding registration. We do not, however, consider that to be necessary. What is known, through the Tribunal’s normal process of enquiry as well as what we were told by both parties, is that the sellers had a registered title to the whole property; applications were made to register the applicants’ and the respondent’s titles to their respective subjects some considerable time, indeed some years, ago; these applications have been confirmed as received and title numbers allocated; but no land certificates have been issued, meaning apparently that the registration process is, for no apparent reason, to some extent incomplete. Arguably, registration has not yet occurred. The subjects are of course not registered in the Sasine Register, so, as Mr Williams pointed out, require registration in the Land Register in order to have real effect. The Keeper of course also narrates the real burden in the Burdens Section of the Register, so that it can be said that the burden only affects the land upon completion of the registration process. On the other hand, both parties have proceeded on the basis that this is, or at least purports to be, a real burden which would be enforceable by the respondent. Certainly the respondent has asserted her right to enforce the burden. In these circumstances, it seems to us wholly unrealistic to suggest, in effect, that neither party has any title or that there is not, at least, a ‘purported title condition’ in relation to which Section 90(1)(a) of the Act confers jurisdictions on the Tribunal. Rather, each has title, apparently as yet uncompleted, the measure of the titles, in particular, for this case, the applicants’ title, being the dispositions.
33. Section 90(1)(a)(ii) – Validity and Enforceability. It seems logical to consider first the applicants’ challenge to the validity and enforceability of this real burden. In relation to enforceability, the Tribunal’s jurisdiction, added by this new provision in the 2003 Act, extends only to determining the question as to enforceability. This will often, as in the present case, be hypothetical, since there is no actual breach by the applicants.
34. Firstly, we do not agree that the burden is not expressed with sufficient precision. We do of course accept the need for such precision, to be found in the title itself, if a burden is to affect the land and thus be enforceable against successors. In this case, the land affected is clearly specified (c.f. Anderson v Dickie). Mr Kydd’s argument focused on “setting down temporarily”. It seems to us, however, that that expression, “prohibited from parking vehicles … with the exception of setting down temporarily”, has a tolerably clear meaning. It does not suffer from the difficulty caused by the words, “all to the reasonable satisfaction of us and our successors” which swayed the majority of the court in Lothian Regional Council v Rennie. The exact time duration of ‘temporarily’ might be a matter of dispute in particular cases, but that does not make the meaning of the word unclear. Given the variety of circumstances, it is difficult to envisage this qualification of the prohibition being expressed any more precisely, except perhaps by some arbitrary time duration which would inevitably often not meet the case.
35. Secondly, however, in our opinion the failure to take the second purchaser similarly bound removes the basis for enforcement of this parking restriction by that purchaser. Whatever any party might have thought had been intended, the provision for insertion of a similar obligation in the title of the House clearly establishes the basis of the obligation, which was undertaken on the basis that a similar obligation would be imposed on the purchaser of the House. This makes it an obligation of a mutual nature so that it cannot be enforced where, as here, the counterpart has not been performed, the scheme has not been followed through and the owner of the House is not similarly bound. In the absence of fuller submissions, perhaps in relation to the words, “under pain of nullity”, we do not go so far as to declare this real burden void, and indeed we were not clear that Mr Kydd’s submission went that far. Conceivably, an adequate basis for enforcement might be restored if the respondent or a subsequent owner of the House were prepared to undertake a similar condition. We do, however, consider that the condition is in the present circumstances unenforceable for this reason.
36. Thirdly, we in any event also uphold Mr Kydd’s submission in relation to interest to enforce. We do note that this argument under Section 90(1)(a)(ii) also was not spelt out in the written pleadings, but Mr Williams took no objection and of course the factual basis for it corresponds with the factual issue as to the extent to which the condition confers benefit on the benefited property (Factor (c) in Section 100, in relation to reasonableness of the application for discharge) and the respondent’s written submissions had addressed that issue.
37. Section 8(3)(a) of the Act provides:-
“(3) A person has such interest if –
(a) in the circumstances of any case, failure to comply with the real burden is resulting in, or will result in, material detriment to the value or enjoyment of the person’s ownership of, or right in, the benefited property.”
The issue here is whether (assuming the condition to be otherwise valid and enforceable) the respondent could meet that test and accordingly enforce the condition. It should be noted that the test relates to the particular circumstances when the issue arises, i.e. in the particular present circumstances, would breach of the condition result in material detriment? Mr Kydd founded on the respondent’s use of the courtyard for parking, and referred to comments on material detriment in Barker v Lewis. The Sheriff Principal said at Para. 27:-
“Much will depend on the nature of the burden and its breach, the nature of the neighbourhood, including issues of proximity of burdened and benefited properties, and no doubt other circumstances particular to the case under consideration – the question being whether in those circumstances the detriment, viewed objectively, is of sufficient significance or import to persuade the court that it is proper to allow the benefited proprietors to enforce the burden.”
The Sheriff Principal recognized the imprecision of his words, but indicated that that was the consequence of the general and imprecise terms of the provision.
38. As it seems to us, the relevant circumstances must include the lack of any similar restriction on the benefited owner and, further, in the present circumstances, the use of the courtyard by the respondent and her visitors for parking. The question being raised in these proceedings by the burdened proprietor and without any actual breach is necessarily hypothetical, but to leave these circumstances out of consideration would seem to depart from the basis of the test in Section 8(3)(a), which does not address theoretical enforceability but enforceability in the particular circumstances.
39. The test is of course objective. The onus would seem in this case to lie on the applicants who submit that there is, or will be, no material detriment to the value or enjoyment of the respondent’s property. In line with the view which we expressed above, we are satisfied on the evidence but also with the benefit of our own inspection that an owner of the House who herself is entitled to and does use the courtyard for parking will not suffer any significant disadvantage, either in terms of any effect on value or in terms of enjoyment of her ownership of the House, from parking (as opposed to passing traffic) in the prohibited area. There was no professional or objective evidence of any such effect, and, particularly in the light of our own inspection of the locus, we do not accept the respondent’s evidence on this. Quite simply, if, as is not in dispute, cars are regularly parked on the side of the courtyard nearer the House, we do not consider that parking in the prohibited area could have any significant effect, far less sufficiently significant effect, on the value or enjoyment of the House. In reaching that view, we appreciate that parking might include – on either side of the courtyard - vans or lorries of tradespeople, carriers, etc.
40. We agree with Mr Kydd that the circumstances would be different if the owner of the House did not herself use the courtyard for parking, although it is not necessary for us to express a view as to whether there would in that different situation be ‘material detriment’.
41. Accordingly, for this reason also, we determine that the condition is, in present circumstances, unenforceable.
42. Section 90(1)(a)(i) – Reasonableness of application for discharge. Section 98 of the Act provides that we are to grant an application for discharge only if we are satisfied that it is reasonable to do so and we are to have regard to the factors set out in Section 100. The approach is well established. We are to look at the evidence (including our own impressions at the site inspection) about the various factors and then weigh them up as a whole so as to reach an overall view on the issue of reasonableness in the circumstances.
43. Section 17 of the Act provides that where a real burden is breached but at that time no person has an interest to enforce it in respect of the breach, the burden shall, to that extent, be extinguished. However (and leaving aside the fact that we have not in fact found any breach), our decision on discharge relates to the future and we cannot rule out the possibility that an owner of the house might have an interest to enforce; or we might be wrong in the view that we have reached on enforceability. Accordingly, we approach the matter at this stage on the assumption that the condition may be valid and enforceable.
44. In regard to the factors listed in Section 100:-
(a) There have been a number of changes of circumstances although not, we think, any change in the character of either of the properties or the neighbourhood. The applicants have shut off an area in which they could park; they have developed another area for parking; and they have added two bedrooms to the Maltings. The House has been sold, but the sellers failed to perform their obligation to insert a similar condition in that title and the purchaser has insisted on her resultant freedom to park in the courtyard.
(b)(i) In present circumstances, the condition appears to us to confer little if any benefit on the benefited property. That results partly from the absence of any similar restriction but partly from the respondent’s actual use of the courtyard for parking. As we have mentioned, another owner might not adopt the same approach, and we are required to consider the matter objectively. (Factor (b)(ii) has no application).
(c) The condition itself only minimally impedes enjoyment of the burdened property, although we should recognize even on an objective view that its wording, and in particular the qualification, “with the exception of setting down temporarily”, leaves some degree of uncertainty and thus potential for friction (as indeed had unfortunately occurred).
(d) This is not an obligation “to do something”, so this factor also does not apply.
(e) Only 5 years have elapsed since the condition was created. This factor is rarely of particular importance in itself, but here the period is quite short and of course the applicants themselves agreed to the condition.
(f) The purpose of the condition is a factor which is often of considerable weight: if there is a legitimate purpose which can still be achieved by the condition, that points against the reasonableness of discharge, although the balance between factors (b) and (c) is also significant. Here, the purpose was clearly to protect the amenity created by the attractive courtyard setting. Although the position taken up by the respondent seems to us largely to defeat that purpose, again we must take an objective approach and recognise that the purpose might be capable of fulfillment if an owner of the House took a different view. There is of course the additional question for whose benefit the amenity was to be protected. In our view, contrary to that of the respondent, the benefit was to be mutual. The disposition states that the condition in the applicants’ title was created for the benefit of the House, but if a similar condition had, as provided, been inserted in the disposition in favour of the respondent a corresponding statement of intention to benefit the Maltings would have been expected (and indeed there is such a statement in relation to the one real burden, the repetition of Condition (One), which was inserted in the respondent’s title).
(g) There is no indication of any planning restriction on parking at the Maltings, and the reasoning of the Reporter in the respondent’s planning appeal does not refer to any such. Accordingly, it can be said that parking in the prohibited area is a permitted use. However, this factor does not really address this type of question and we do not regard it as of any significance one way or the other.
(h) Although the respondent has referred to the possibility of claiming compensation, no such claim has been made and neither party suggested that this factor was of any relevance.
(i) This factor does not apply.
(j) If it is wrong to regard the failure to insert a similar condition in the respondent’s title as relevant under (a), we would regard it as another factor which we consider to be obviously material as involving a departure from the basis on which the condition was accepted.
45. Despite having found this condition unenforceable in present circumstances, we have not found, drawing these considerations together and reaching a view on reasonableness, easy in this case. We do not consider this burden into which the applicants freely entered quite recently to be at all onerous on them. Other parking space is or could be available to them. Equally, however, in view of the position taken up by the respondent, we cannot see that she derives much benefit from it. We must, however, take an objective view.
46. The idea that a burden might be unenforceable but it would not be reasonable to discharge it might seem odd. It would certainly be unusual. We think, however, that this is a possible outcome where the burden is a use restriction, if the unenforceability results from the benefited proprietor’s actual use of his or her own property and, looking at matters objectively, there is a reasonable prospect of that proprietor or a successor changing the use and thus changing the circumstances relevant to enforceability, i.e. the burden could again become live. Such an approach appears consistent with Section 17 of the Act, the effect of which, on the basis of our decision in this case under Section 8(3)(a) and with no-one other than the respondent having an interest, the burden is extinguished but only to the extent of the breach. Here, if the respondent were not herself asserting her right to park in the courtyard, the balance of reasonableness would in our view be strongly against the application to discharge. The burden itself does not seem unreasonable.
47. We have therefore asked ourselves whether it is reasonable to remove the possibility that this condition might become live again. Granting the application would seem to destroy the original, in our view, entirely reasonable, objective. Refusing the application would leave a state of some uncertainty, with a burden appearing on the title although unenforceable, for some indefinite period. Is it reasonable to remove that uncertainty?
48. We have reached the view that it is reasonable to discharge this burden. Leaving the burden in place would leave matters in an uncertain state. The mutual scheme clearly envisaged in the provision creating the burden was not established. It is speculative to consider that it might now be established. While we think that it would in many ways be better for the two owners to agree to keep the essential part of the amenity setting free from parking, to the benefit of both houses, that seems an unlikely prospect. In the end, therefore, we are satisfied that it is reasonable to discharge this burden.
49. If we had been deciding this issue on the basis that the burden was enforceable, we would have reached the same decision, as we would then have been of the view in the circumstances that in the absence of any similar condition in the title of the House, it would be unreasonable to leave the House owner in a position to enforce the burden.
Decision
50. For all these reasons, we have determined under Section 90(1)(a)(ii) that this title condition in the form of a real burden is not in present circumstances enforceable. We have also decided that we are satisfied that it would be reasonable to discharge it.
51. Any application for expenses can be considered, in accordance with our normal practice, on the basis of written submissions.