Heritable Property – Title Conditions – Discharge or variation – Real burdens prohibiting building – Strips of ground, formerly a vegetable garden, acquired and added to rear gardens of six houses – Detailed mutual building and use restrictions and rights of veto – Proposal by two owners to combine strips and erect additional house – Opposition by all the other proprietors – Reasonableness – Purpose of conditions – Effect on amenity of objectors, particularly immediate neighbours – Applications refused – Title Conditions (Scotland) Act 2003, Sections 98, 100
Heritable Property – Title Conditions – Discharge or variation – Expenses – Successful objectors – Circumstances in which each respondent awarded expenses without modification; architect sanctioned as expert witness; and junior counsel sanctioned, limited to appearance at hearing – Title Conditions (Scotland) Act 2003, Section 103(1)
An area of ground used as a vegetable garden was acquired in 1962 in 6 strips by the owners of adjoining houses as additional garden, subject to detailed mutual building and use restrictions, in particular prohibiting the erection of any other houses. Two owners at the end of the row of houses proposed to combine their strips in order to build an additional house, for which they had received outline planning permission and for which they exhibited plans. All the other owners opposed the applications for variation of the title conditions.
The Tribunal considered that the plans involved a large imposing house erected at a higher level than the existing houses and overlooking in particular the next two houses, the site being angled towards them. There would be some natural screening but still a very considerable mass. There would be a considerable detrimental effect on these houses. The purpose of the title conditions was clear and expressed, viz. to protect the private amenity of the 6 houses, each of which had an express power of veto. In the circumstances, it would not be reasonable to meet their objections with awards of compensation. The applications were refused.
The two objectors, the immediately neighbouring owners, who appeared and had legal representation at the hearing, were both also awarded expenses, without modification. An architect, who had prepared ‘mock-up’ illustrations based on the plans, was sanctioned as an expert witness. Employment of junior counsel, limited to appearance at the hearing, was also sanctioned.
George Wimpey East Scotland Limited v Fleming & Ors 2006 SLT (Lands Tr) 2
Ord v Mashford 2006 SLT (Lands Tr) 15
See full decision: LTS/TC/2008/56 (Merits) and LTS/TC/2008/56 (Expenses)