Heritable Property – Title Conditions – Discharge – Building restriction in deed of conditions for small housing development – One owner wishing to build additional house – Minute of agreement by majority discharging burdens – Application by immediate neighbour to preserve unvaried – Unfair prejudice to applicant – Variation to permit particular proposal would have been reasonable but held not competent – Title Conditions (Scotland) Act 2003, Sections 33, 90(1)(c), 98, 100

Robert Fleeman v David Lyon & Anr
4 August 2009

Clause (First) in a Deed of Declaration of Conditions for a development of 6 houses contained a variety of community burdens including standard building and use restrictions. One owner at the end of the terrace of houses, wished to build an additional house in his garden ground, in contravention of the building restriction. He had a Minute of Agreement under Section 33(2) of the 2003 Act signed by 4 other proprietors, discharging Clause (First) in relation to his house only. His immediate neighbour, however, objected to the proposed house, did not accede to the agreement and applied under section 90(1)(c) to have the title conditions preserved unvaried. This application was considered on the basis of written submissions and a site inspection, and without full submissions on technical issues under the Act.

The Tribunal considered that complete discharge of all the burdens in Clause (First) in relation to one house was unfairly prejudicial to the applicant as owner of the neighbouring house. The Tribunal was of the view on the merits of the proposal to build the house (on the other side from the applicant’s house), that variation so as to permit this would be reasonable and not unfairly prejudicial. The Tribunal decided, however, as a matter of statutory interpretation (in the absence of full submissions on the matter), that it could not competently allow the application under Section 90(1)(c) in part so as to achieve such variation. The application was granted.

Authorities referred to:-

Macpherson v Mackie 2007 SCLR 351
Barker v Lewis 2007 SLT (Sh Ct) 8 and 2008 SLT (Sh Ct) 17

See full decision:  LTS/TC/2008/60