1. This is an application under Section 34(3) and 90(i)(c) of the Title Conditions (Scotland) Act 2003 (“the Act”), by a co-owner of one of the six houses in a small development whose title is governed by a deed of conditions. The respondents, who are the applicant’s immediate neighbours, propose to build an additional house in their garden ground, contrary to a building restriction in the deed of conditions. It seems clear that the building restriction is a community burden in terms of the Act. Four owners, i.e. a majority of the community, executed a Minute of Agreement purporting, apparently in reliance on Section 33(1) of the Act, to discharge the building restriction but only in relation to the respondents’ property (“the majority agreement”). The applicants, while apparently not opposed to the respondents building another house under certain conditions, have applied to the Tribunal to preserve this community burden unvaried.
2. Applying Section 98(b)(ii), and having regard to the factors set out in Section 100, of the Act, the Tribunal has reached the view that the discharge in question, i.e. complete discharge of this real burden as it applies to the respondents’ property, is unfairly prejudicial to the applicant as one of the owners in the community. This application will accordingly be allowed. The majority agreement cannot stand.
3. The Tribunal has reached this view because the discharge granted in the majority agreement is a complete discharge without any safeguards in relation to the extent of building, the site of the proposed house, the height of the proposed house and access to the proposed house. In our opinion, it is not open to us in these particular proceedings to order a more limited variation of the title condition.
4. We also draw attention below to one or two more technical points in relation to the majority agreement. In particular, we have noted that the deed which led to the present application purported to discharge, in relation to the respondents’ property, the whole of the relevant clause, clause (First), in the deed of conditions. That would also release the respondents from a number of other real burdens, for example prohibiting various types of commercial use, so that neither the owners of Kairos nor the owners of the proposed new house would require to comply with these various conditions but the other five proprietors would. From the preamble of the deed, this does not appear to have been the intention, nor does it appear appropriate. It is in our view an additional reason why the discharge proposed in the deed is unfairly prejudicial.
5. However, having had the opportunity to consider the reasonableness of the respondents’ present proposals in the light of this title condition and in all the circumstances, we wish to add that, had it been open to us, we would have been prepared to order a variation of this title condition, in so far as relating to the respondents’ property. This would have been a variation to the extent of permitting the erection of an additional house as shown on the provisional plans exhibited to us but also subject to a condition that a separate vehicle and pedestrian access from the public road to the new house was provided, such access also to be available for use by the respondents’ present house. For reasons which we set out below, particularly at paragraphs 31 to 33 and 46 to 48, we take the view that although a house of that size in that position would be visible from parts of the applicant’s garden, it would not be unreasonable, or unfairly prejudicial to the applicant as benefited proprietor, to vary the title condition subject to such conditions. Had this been an ordinary application to the Tribunal under Section 90(1)(a)(i) of the Act, we could have made such a variation order with conditions, but we take the view, as a matter of statutory interpretation, that in an application under Sections 34(3) and 90(1)(c) an order in that form is not open to us.
6. We express the hope that if the respondents still wish to proceed parties will now be able to reach agreement without the need for any further application to the Tribunal.
7. Clause (First) of a Deed of Declaration of Conditions by M & K MacLeod Limited recorded in the General Register of Sasines for Argyll 3 November 1982, (“the deed of conditions”) in relation to a development of houses at Slockavullin, Argyll, including ‘Bruach’, of which the applicant is a co-owner, and ‘Kairos’, of which the respondents are owners, provides as follows:-
“FIRST Each of the said plots shall be used only for the purpose of a single private dwellinghouse for the residents of one household. No buildings other than one private dwellinghouse with relative garage and offices in connection therewith shall be erected on any plot and the buildings on any plot shall not be used as an hotel, public house or other place for the sale of exciseable liquor, restaurant, shop, place of trade or manufacture or for any other purpose which might constitute a nuisance to the neighbourhood. The parking or keeping of any caravan or tents in any part of the said development is prohibited. No livestock other than dogs or cats as domestic pets shall be kept in any dwellinghouse or on any plot. The erection or display of any notice boards or advertisements other than the name of the dwellinghouse is prohibited. Each plot so far as not built upon shall be laid out and properly maintained as garden ground or amenity ground in connection with the dwellinghouse erected thereon. Each purchaser will require to maintain any landscaping implemented by the builders for a period of ten years. No trees on plots are to be felled or removed without the written consent of Argyll & Bute District Council Planning Authority and any tree removed shall be replaced with a species to be agreed with the said Authority. Any landscaping which is a condition of the planning consent issued by the said District Council will be undertaken by the Builders and maintained by the purchaser to the satisfaction of the said District Council.”
These real burdens created by the deed of conditions are narrated in the Burdens Section of the respondents’ registered title under Land Certificate ARG 5837.
8. Six properties are subject to the provisions of the deed of conditions. A Minute of Agreement apparently relying on Section 33(2) of the Act was executed on various dates between 16 December 2007 and 26 January 2008 by the proprietors of four of the houses i.e. a majority of proprietors (not including either the applicant’s or the respondents’ property, although the deed had apparently been prepared in anticipation of all six owners signing). This deed narrates the various proprietorships, refers to the burdens in the deed of conditions as community burdens, and then narrates the respondents’ intention to erect an additional house in the garden of ‘Kairos’ and “the parties have agreed to discharge and cancel clause (First) of the said Deed of Conditions but only in relation to the said subjects Kairos”, and continues:-
“THEREFORE the parties hereto hereby discharge and cancel clause (First) of the said Deed of Conditions but only in relation to the said subjects Kairos”.
Thereafter, the respondents acted as ‘Proposer’ in issuing notice under Section 34(2)(a) of intention to register this deed. The applicant, as an owner of a unit in the community who had not granted the deed, made the present application under Sections 34(3) and 90(1)(c) for preservation unvaried of the community burden which the deed proposed to discharge.
9. Section 98 of the Act provides that an opposed application under Section 34(3) for preservation is to be granted only if the Tribunal are satisfied, having regard to the factors set out in section 100, that:-
“(b) … the variation or discharge in question-
(i) is not in the best interests of all the owners (taken as a group) of the units in the community; or
(ii) is unfairly prejudicial to one or more of those owners.”
Section 100 sets out a list of factors (a) to (j) mentioned in Section 98.
10. In their representations opposing the application, the respondents raised an issue as to whether, in terms of Section 8(3) of the Act, the applicants have an interest to enforce the real burden in the deed of conditions. There is, however, no application under section 90(i)(a)(ii) for a determination by the Tribunal as to the enforceability of the burden. This is accordingly not an issue which arises directly at the present time.
11. Parties were agreed on disposal of this application without a hearing, in accordance with Rule 26 of the Lands Tribunal for Scotland Rules 2003, and the Tribunal has proceeded on that basis. Parties were given an opportunity to make any final written submission prior to the Tribunal’s site inspection. The applicants lodged such a submission. Accordingly, the Tribunal, as well as having the benefit of its own inspection, had before it the application and representations opposing, various adjustments, the applicants’ final submissions and some documentary productions.
McPherson v Mackie 2007 SCLR 351
Barker v Lewis 2007 SLT (Sh Ct) 48 and 2008 (Sh Ct) 17
12. The Tribunal has found the facts, in so far as material to the application, to be as follows.
13. Slockavullin is an attractive and secluded small rural settlement located off a minor road in Argyllshire. Most of the housing is situated on either side of the village road. There has been varied residential development. The early 1980s development of six modestly sized semi-detached bungalows, governed by the deed of conditions, occupies most of the east side of the main stretch of the road but is separated from it by a burn. There are three groups of houses with varying plot sizes, with Kairos and Bruach being neighbours at the south end. Between these two houses and the other four, there is a car park for about eight cars, with access from a bridge across the burn. In terms of the title arrangements for the development, this was the only access and is across land not part of the development but over which the six owners have access rights in common. Each also has a one sixth pro indiviso right in the car parking area. The four houses which do not adjoin the car park, i.e. Kairos and the three houses at the north end of the development, take their only access, and have pedestrian access rights, over footpaths leading, between the burn and the houses, through the gardens of the two houses, including Bruach, adjacent to the car park. However, the house at the north end, i.e. the other end from Kairos and Bruach, has an additional vehicular access bridge across the burn, outwith the development title arrangements, presumably by private agreement with the landowner.
14. Kairos, the respondents’ house, has the largest plot, around twice the area of Bruach, which has the second largest plot. Kairos has a small extension to the side. The garden areas to the rear of these two houses slope markedly uphill. There is a flatter although still slightly elevated area to the side of Kairos, at the south end of its plot, nearest to the burn, with a row of conifers screening this area from the burn and the road. A 4-bedroom 1½ storey house with a ground floor area similar to that of Kairos is proposed to be built on this part of the site. It would be set back from the building line and at a slight angle, its front wall being roughly aligned with the back wall of Kairos. Two dormer windows would look out to the street. The ground floor level would be approximately 1 metre higher. A new vehicular bridge would be formed across the burn, removing one or two of the conifers. This would give access to a parking and turning area between Kairos and the new house. Planning permission is likely to be forthcoming, at least in principle, for an additional house, but has not yet been applied for. Access rights across the burn have not yet been obtained from the landowner.
15. Bruach, originally the same size of house as Kairos, has a similarly sized small extension to the rear, with a blank wall on its south side, so that the proposed new house would be invisible from within Bruach. Bruach, however, has an irregularly shaped plot, the house being situated within a few feet of the communal car park but the garden including an elevated strip, reached by steps behind and above the car park. That area provides an attractive lawn and sitting area from which some of the higher parts of the garden of Kairos can be seen to the south, although there is some screening from bushes nearer the boundary between the two houses. Some of the roof and upper gable wall of the proposed house would be visible from this part of the garden of Bruach. The views to the west and north from this part are dominated by the varied housing of the village, with a wooded backdrop. Open fields lie immediately to the east, on the other side of the boundary fence.
16. In summary, the applicants submitted that, as the proposed dwelling would have no perceivable impact on the other four houses, their signature of the majority agreement did not demonstrate that the discharge was in the best interests of the community. The discharge would be unfairly prejudicial to the applicant as an owner of Bruach. In relation to the factors in Section 100 of the Act: there had been no material change of circumstances since the title condition was created; the condition conferred substantial benefit on Bruach, in relation to amenity and density; the proposed new house well to the rear of Kairos would be central to Bruach’s rear outlook; the condition did not affect enjoyment of the burdened property, although it prevented speculative development; the length of time since the condition was created, at 26 years, was not a long period; the purpose of the condition was to protect amenity for the benefit of all the proprietors on an ongoing basis; there was no planning consent or deemed consent and the planning process was not in any event particularly concerned with the benefits and interests of third parties; and the applicant had offered a non-monetary compromise in relation to the Kairos owners giving up their rights in relation to the car park, and had showed readiness to find a compromise. If the structure height was reduced and the location adjusted, the applicants would reconsider. The new house did not require to be as far away from the septic tank.
17. The respondents submitted that, four owners having agreed, the discharge was in the best interest of the community, and it was not unfairly prejudicial to Bruach. It was accepted that there was little change in circumstances; the condition conferred no significant benefit; in relation to enjoyment of the burdened property, the fruits of further development, prevented by the title condition, were relevant; the length of time since the condition was created was not relevant; the deed of conditions had been granted by the developers, not the various proprietors; the plot of the proposed new house was zoned for development and there should be no difficulty in obtaining planning permission; the non-monetary compromise was not acceptable to the respondents, and in any event transfer of the respondents’ pro indiviso share in the car park would do nothing to alleviate any loss of amenity.
18. The parties’ positions on the amenity effect of the proposed new house were further focused in competing submissions as to whether the Bruach proprietors would, applying the test in Section 8(3)(a) of the Act, have an interest to enforce the burden.The respondents submitted that because of the positioning of the proposed new house, with Kairos located in between, breach of the burden would not cause material detriment to the value or enjoyment of Bruach. Reference was made to Sheriff Court consideration of that issue in Barker v Lewis. The applicant contrasted the proposal for a permanent building with the transient breaches in that case and did not accept that there would not be interest to enforce.
19. Generally, the Tribunal’s jurisdiction in relation to discharge of title conditions requires us to consider, having regard to the factors listed in Section 100 of the Act, the reasonableness of proposals to relax title conditions. Often, as in this case, the condition in issue is a restriction to one dwellinghouse. There may be questions as to whether the burden should simply be discharged or alternatively should only be varied so as to permit further building only subject to one or more conditions.
20. In the present case, however, we require first to note some more or less technical procedural considerations.
21. Firstly, the case comes before us the other way round, as it were, because the burdened proprietors invoked one of the new procedures introduced by the Act in relation to ‘community burdens’. A majority of proprietors may execute a deed which may have the effect of discharging or varying a community burden unless a minority benefited proprietor successfully applies to the Tribunal to have the burden preserved as it was. The applicant in this case is, perhaps understandably, frustrated at being regarded as an applicant when in fact all he is doing is reacting to his neighbour’s wish to free himself of the burden. It may be slightly doubtful whether the provisions in relation to community burdens really envisaged use of this procedure in a case of this sort, where the majority agreement only affects a burden as it relates to one of the properties. However, no issue is taken on this and it does appear clear enough that the burden in the deed of conditions is a mutually enforceable community burden. We also do not think anything turns, at least in this case, on the fact that the deed was apparently prepared in anticipation of all the owners signing and may therefore have been signed by some owners in that belief. Further, the effect of these provisions is that, since a majority of owners have executed such a deed discharging the burden, the onus, or burden of proof, is, unusually, on the applicant to satisfy us that the burden should be preserved.
22. Secondly, the applicant is in fact only one of five co-owners of the benefited property. It is, however, clear that he is ‘an owner’ who is entitled to apply. We would also mention that the fact, mentioned by the respondents, that the applicant may not himself live permanently at the benefited property is neither here nor there, as we have to consider the positions of owners from an objective standpoint.
23. Thirdly, the issue in this type of case is not simply whether the discharge on which the majority have agreed is reasonable. The effect of Section 98(b) is that in this type of case there are two alternative grounds on which the application can succeed, viz. that the discharge “is not in the best interests of all the owners (taken as a group) of the units in the community” (98(b)(i)), or “is unfairly prejudicial to one or more of those owners” (98(b)(ii)). This application referred to both possible issues, but we do not consider that the applicant has advanced any positive case under the first ground. He did refute the respondents’ argument that because the majority had executed the deed the discharge was self-evidently in the interests of the community. We agree with the applicant that that does not follow at all, and indeed would render the provision in Section 98(b)(i) useless, but the applicant’s arguments have not in fact referred to the interests of the community as a whole and we cannot find that ground established. The applicant’s arguments are directed at the particular position of Bruach as the immediate neighbour of Kairos. This is clearly the sort of case which raises the second issue, under Section 98(b)(ii), and it is that issue which we have considered.
24. Fourthly, we have encountered something of a problem in relation to the orders which we have power to make. Put shortly, because the application is an application under Section 90(1)(c) we think that it is ‘all or nothing’, i.e. we must either grant the application and preserve the condition unvaried, or refuse the application and make an order discharging the condition as provided in the majority agreement. This contrasts with the position if the respondents, as burdened proprietors, had applied under Section 90(1)(a)(i): in such an application, the realistic issue, particularly in relation to a condition prohibiting erection of a second house, may be variation to the extent of permitting such building, often subject to some further condition or conditions, for example in relation to the location of the house or its height.
25. We have reached this view as to our powers under Section 90(1)(c) on the basis of the wording of Section 90(1), which gives us a number of jurisdictions which set and limit our powers. The commonest jurisdiction is under Section 90(1)(a)(i), applications by burdened proprietors to discharge or vary. Another is under Section 90(1)(b), where there has been a ‘notice of termination’ of a burden created more than 100 years ago (the ‘sunset rule’) and where, as in the present case, the benefited proprietor has to make the application. Section 90(1)(c), of course, is the present case. In relation to (a)(i), our power is to discharge or vary. In relation to (b), our power is to ‘renew’ or vary. However, in relation to (c) (for which Section 34(3) also provides) our power is to ‘preserve unvaried’. Subsections (b) and (c) are also subject to the following provision at the end of Section 90(1):-
“… but where the Lands Tribunal refuse an application under paragraph (b) or (c) above wholly, or an application under paragraph (b) partly, they shall in relation to the benefited property discharge the title condition, wholly or partly, accordingly or as the case may be shall in relation to the units not all of whose owners have granted the deed vary or discharge the community burden accordingly …”
That part of the provisions is necessary to ensure that ‘notices of termination’ in ‘sunset rule’ cases, or ‘majority agreements’ in relation to community burdens, although frustrated by applications to the Tribunal, can have effect if upheld by the Tribunal. In our opinion, we are authorized in ordinary applications under (a)(i) and also in applications under (b), to make an order allowing the application only to a limited extent, as well as to grant or refuse the applications, but in applications under (c) only to grant or refuse the application. The passage quoted above refers to refusing applications under (b) wholly or partly, but only to refusing applications under (c) wholly. In relation to (c), therefore, we can only either allow the application and ‘preserve unvaried’ or wholly refuse the application and order the variation or discharge as provided in the majority agreement.
26. There does seem to be a technical reason for providing differently in relation to termination under the ‘sunset rule’ and majority variation or discharge of community burdens. This is that in the case of majority agreement in relation to a community burden, the normal use of such a deed, and the normal order by the Tribunal if the majority agreement is unsuccessfully challenged, is to vary or discharge the burden in relation to all the units in the community, not all of whom may have been involved in the Tribunal proceedings. It was presumably thought necessary to avoid a situation in which a burden over a property could be varied otherwise than provided in the majority agreement without the burdened owner participating in the proceedings before the Tribunal which had that result. This is a slightly different situation from cases in which benefited proprietors who do not oppose applications find burdens varied otherwise than as applied for. It is unfortunate to have to take this view in a case in which the burden was to be discharged only to the extent that it burdened one property, but if our view of our jurisdiction is correct we cannot exceed that.
27. Fifthly, as will be seen from our narration of Clause (First) and the majority agreement, the majority agreement in fact purported to release Kairos from various other use, etc. restrictions in the clause, which would have meant that both Kairos and the new house would be released from all these provisions which would remain as burdens, perhaps enforceable by the Kairos owners, on the other properties. That would not appear to have been intended, but it is what the majority agreement plainly provided.
28. One final unusual feature of this case is that the respondents acted as ‘proposer’ in relation to registration of the majority agreement although they were in fact not signatories to it. Again, no point is taken about this and it may be that it does not affect the competency of the procedure, so it is not necessary to do more than simply note this point. (We do wonder whether, if such an agreement which had not been opposed were presented by the ‘proposer’ for registration, but that person was not a signatory, the Keeper might consider that there was a problem.)
29. We should record that we did not receive detailed submissions on the above technical matters but in the particular circumstances did not think it necessary or appropriate to put parties to the further expense of making submissions either orally or in writing on them. The question as to the extent of our power in applications under Section 90(1)(c) might require further consideration on the basis of fuller submissions in another case.
30. We would also point out that we are not required in this application to decide, applying the new test in Section 8(3) of the Act, whether this real burden would be enforceable. That issue is not before us. No doubt there is some parallel between this issue and factor (b) in Section 100, but we are required to have regard to that factor and not the ‘material detriment’ test.
31. Turning to the particular circumstances, our general assessment, drawing particularly on our own observations at the site, is as follows. Firstly, in comparison with the other houses, Kairos has a much larger plot. Looking at the matter very generally, there is room for one more house.
32. Secondly, having had the opportunity of considering, on the basis of plans, the effect of the proposed house on the amenity and outlook of Bruach, we are clear that there will be no visual impact on the inside, or on the lower garden space, of Bruach: there is no question of overlooking or overshadowing. There will, however, be some impact on the outlook from Bruach’s raised garden at the rear. The roof ridge level will be considerably above that of Kairos and Bruach. It is also to be set back from the building line of these houses, bringing it more into the field of vision. Quite a lot of the gable wall and roof of the house would be visible, although slightly screened by existing bushes, from the upper garden of Bruach. The ridge level would appear to be slightly higher, so that it would not be correct to say that there would be a view over the roof. However, when the whole outlook from that upper garden is considered, we do not think that this new house would have a major impact. Sitting or standing in the elevated upper garden, just above the roof ridge level of Kairos and Bruach, one has an attractive view around the village on three sides, with an open field on the fourth. The view is a blend of around 20 houses in their settings in the village against, generally, the woodland backdrop. The houses are of varying styles and heights and visible to varying degrees. We felt that two existing houses in particular have a similar impact on the outlook from that point: a two-storey building opposite Kairos, and a 1½ storey house, broadly similar to the proposed house size, at the other end of the row of bungalows, each at a roughly comparable, if slightly larger, distance away. In short, we think that the proposed house would quite quickly blend in. Clearly, Bruach residents, who are used to the present situation and have been concerned for some time at this development, will notice it at first but we would expect them to quite quickly get used to it. We do not think that, for example, a hypothetical purchaser of Bruach would be troubled or influenced by it. (Obviously, there would be considerations of design, materials and finishes but the planning process may be expected to deal with these.)
33. There are, however, two other considerations. Firstly, we accept that the communal car parking area is limited and might reasonably be thought inadequate for the demands of one more house of the size proposed. Secondly, as matters stand, the only access to Kairos is by a footpath along the front of Bruach. We would not comment on the legal position, in relation to either the ownership or use of the car park or the pedestrian access, if another house is built in the garden of Kairos, but we are clear that it would be unreasonable and unfair to require Bruach to tolerate access that way to two households (the new house also having about two more bedrooms). The plans exhibited appear to meet these problems by showing the new house, and possibly also Kairos, taking access, presumably pedestrian as well as vehicular, over a new bridge across the burn. We think that without such provision the additional house would impose unreasonable burdens on Bruach.
34. Our specific consideration of the factors listed in Section 100 is as follows.
35. It is often useful to consider factor (f), the purpose of the title condition, first. From the wording of the provision and from its context, we are clear that this burden is for the protection of the amenity of all the six houses. It may also have been intended to protect the interests of the developer until the houses were all sold, but there can be no doubt that it had, and has, a continuing application and purpose. It is not specifically aimed at protection of the view from the upper garden of Bruach, so undue emphasis should not be given to that, but it is, along with other amenity considerations such as light, noise, nuisance, etc., included in the amenity purpose of a building restriction like this.
36. It is agreed that there is no relevant change of circumstances (factor (a)) which might militate in favour of relaxation of the burden.
37. The condition as a whole clearly confers quite an important benefit on the proprietors of Bruach, in the form of control, through the right of veto, over any proposals for additional housebuilding. (factor (b)). Indeed, since the whole of Clause (First) in relation to Kairos has been brought into consideration, there is the additional benefit of control (subject to establishing an interest to enforce) of a range of amenity conditions. However, viewed in the context of the particular proposal, the benefit is considerably diminished in the light of our impressions recorded above: we think that the impact of this proposal on the amenity of Bruach is limited, provided the new house takes direct access over the burn.
38. On factor (c), the respondents correctly point out that ability to enjoy the fruits of additional development is a relevant part of enjoyment of property, so that this burden does involve a substantial impediment of that enjoyment. Obviously, the impediment is more limited if the benefited neighbour is willing in principle to accept another house, but even in that situation the control involved is quite a serious limitation on the right of the owner of property to develop (subject of course to planning consent) his property.
39. It was not suggested that factor (d) has any relevance to this case. Neither side relies strongly on (e), the age of the condition. Since no particular change of circumstances is suggested, and we do not think that there has been any more general change affecting the houses at this location, we agree with the applicants that the condition should not be seen as particularly old or outdated.
40. As to (g), the respondents are not presently able to rely on any planning consent for an additional house. On the other hand, they assert, the applicant acknowledges and we have found as a fact, that such consent is, at least in principle, likely. It can be said, very generally, that building another house is not unreasonable. Our primary focus, however, is on the particular effect of the proposed discharge on the applicant who is entitled to argue that it would be unfairly prejudicial to him as an owner of Bruach when all the factors relating to the title condition are taken into account.
41. The references in parties’ submissions to a possible ‘non-monetary compromise’ may have some relevance to factor (h) or, if not relevant under that factor, factor (j), any other material factor. This was the possibility of the respondents giving up their rights, i.e. their pro indiviso share of ownership, in the communal car park. The applicant appeared willing to agree to the proposal on this basis. The respondents on the other hand are not (or possibly, no longer) offering it, apparently because they have not yet secured the separate right of access across the burn. It appears to us that this raises two problems about the respondents’ proposals: firstly, increased pressure on the car parking space, which seems to us a legitimate consideration; and secondly, assuming no separate access, increased use of the footpath through the front garden of Bruach, a matter referred to above. These are only possibilities, because the plans reveal a hope of being able to develop the separate access, but the respondents’ present position does not guarantee that and apparently leaves a possibility of increased use of the car park and the footpath. The reference in Section 100(h) to paying compensation suggests that this matter does not really arise under that head, but it does seem to us relevant to the overall issue that the respondent’s proposals, and certainly the complete discharge provided for in the majority agreement, leave open the possibility of that increased use.
42. We do not think that the parties’ submissions raise any other issue under the ‘catch-all’ of factor (j).
43. Weighing all these considerations up, and considering first the proposed discharge in relation to Kairos only of the real burden limiting use to a single house and prohibiting further building, we think that this is a clear case in which the agreement of the majority, whose houses are all separated from Kairos by Bruach and the car park, is unfairly prejudicial to the owners of Bruach, including the applicant. Clearly this building restriction does substantially impede the Kairos owners’ enjoyment, in the legal sense, of their property. However, it is an amenity (as well as a community) burden which may well in some situations particularly benefit the immediate neighbours. It is not a particularly old burden, and no change of circumstances is suggested. It gives Bruach, as well as the other houses, an important benefit of control. Whatever we think of the current proposals, the effect of simply removing that control would be that Bruach would be left with no right to object to any building proposal.
44. Additionally, as we have already mentioned, the provision as it stands in the majority agreement would discharge the whole of Clause (First) as regards Kairos. That is unfair to Bruach, as it potentially exposes Bruach to, for example, some business use of Kairos involving pedestrian traffic through Bruach and other potentially disturbing uses. We are sure that this was not what was intended, but that is the agreement which is before us and which we require to consider on an ‘all or nothing’ basis.
45. For these reasons, we are satisfied that the majority agreement is unfairly prejudicial to the applicant and have accordingly decided to allow this application and preserve Clause (First) unvaried.
46. However, the issues raised by the parties are clearly on the different basis of considering the respondents’ particular proposals and we think it right also to indicate our views on that basis (and indeed, in case we are mistaken in our interpretation of our powers under Section 90(1)(c)). On that basis, the case takes on a quite different appearance. Despite the right of the Bruach owners to object to the proposed additional house, it might be reasonable to relax the restriction so as to enable a particular proposal to proceed. Reviewing the factors listed in Section 100 against the particular proposal, we find firstly that in general there is room for a further house, which in principle might obtain planning permission. Then when we look at the particular plans, as indicated above, we find that the building would have no impact on the interior or lower garden of Bruach. Although it would affect the outlook from the upper garden in which there is an attractive sitting area that effect would in our view, as explained above, be limited. There are the additional factors of pressure on the car parking spaces and additional pedestrian traffic through Bruach’s front garden. If, but only if, the proposal were conditional on limiting the house to the location and height shown and providing the proposed separate access so as to avoid any increased pressure on car parking space and make pedestrian traffic in front of Bruach unnecessary, in our view the benefit of the right to object would be very limited. The impediment of enjoyment of the Kairos property would remain substantial. There would be a continuing restriction preventing any further development as well as the other uses listed in Clause (First). On this basis, the purpose of protection of amenity would in our view not be seriously undermined. Overall, it would in our view have been reasonable to vary the burden in this way and on these conditions. If the majority agreement had provided for variation in this way rather than for discharge, in relation to Kairos, of the whole burden, we would not have been satisfied that the majority agreement was unfairly prejudicial to the Bruach owners.
47. We should mention that in indicating that view we have not included the possibility of the respondents giving up their rights in the car park. Firstly, these are ownership rights and we could not impose such a condition. Secondly, it appears to us that the problems of the car park and the increased use of the footpath across Bruach would in practice be removed, and there would be no need to alter the rights in the car park, if the separate access, available to Kairos as well as the new house, were provided.
48. During our visit, we were impressed by an apparent lack of animosity between the parties arising out of this matter. We hope that this indication of our views may assist parties in their further consideration of matters and that further recourse to the Tribunal may not be required. We can of course not bind the Tribunal in any future application.
49. For these reasons, we allow this application with the effect of preserving the title condition unvaried, although we have also indicated what we would have decided had we been free to make an order varying the title condition in question subject to conditions.
Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 4 August 2009
Neil M Tainsh – Clerk to the Tribunal