Heritable Property – Title Conditions – Validity – Discharge or variation – Use restriction – outdoor recreational purposes – Tennis courts – No such use since 1978 – Whether burden accurately described – Whether benefited subjects adequately identified – Whether discharge reasonable – Burden effectively obsolete – Held, discharge reasonable – Title Conditions (Scotland) Act 2003, Sections 90(1)(a), 98, 100

Perth and Kinross Council v Chapman and Oxnard
13 August 2009

A bank gifted tennis courts to the community in 1945. The relevant Disposition in favour of the local authority restricted use of the subjects to ‘outdoor recreational purposes’. There had been no such use since 1978, when an alternative site for tennis courts had been found and a school extension built. Upon closure of the school, the Council wished to sell the whole site for development. The owners of two flats within the former bank premises objected to the application for discharge.

The Tribunal rejected the applicants’ submissions that there was no valid burden, because the word ‘servitude’ had been used, or alternatively that the provision failed adequately to identify the benefited subjects.

The Tribunal considered the burden effectively obsolete. The use of the subjects had changed fundamentally, in breach of the burden, 30 years ago. Neighbouring owners who had tolerated this change could not reasonably rely now on the burden to resist new development. The application for discharge was reasonable.

Authorities referred to:-

Anderson v Dickie 1914 SC 706, 1915 SC (HL) 79
J & A Mactaggart Ltd v Harrower & Ors (1906) 8 F 1101
Kemp v Magistrates of Largs 1939 SC (HL) 6
George Wimpey East Scotland Ltd v Fleming & Ors 2006 SLT (Lands Tr) 2
Ord v Mashford 2006 SLT (Lands Tr) 15
Moncrieff v Jamieson 2008 SC (HL) 1

See full decision:  LTS/TC/2009/06