Heritable property – Condition in title restricting subjects to use as a hotel or single dwelling house – Earlier planning application for demolition and redevelopment by flats withdrawn – new application not yet determined – Erection of flats would block view of sea and hills of Arran from private house behind hotel – Site larger than that of single house plots in neighbourhood – Title Conditions (Scotland) Act 2003 Secs 98 and 100.
The owners of a small hotel sought a discharge of a title condition which restricted use to a hotel or single dwelling house. Joint owners of a house in the road to the rear of the hotel objected on the grounds that if flats were to be erected the view, meantime over the hotel, could be lost also that the hotel served a useful purpose not available elsewhere in the village. An adjoining owner objected on similar grounds and as the hotel provided public toilet facilities for day visitors to the beach.
The Tribunal granted the application for a discharge on the basis that there was nothing to suggest that the purpose of the condition was to ensure hotel facilities, that in the current climate it could be difficult to run a hotel financially successfully, that there had been a change in circumstances and in particular the construction of flats nearby. The extent of the impediment on the applicant was quite considerable. The benefit of the condition so far as consistent with the purpose was very limited.
Observed that while technically there was no certainty that flats would be built, if the condition were to be discharged, given the earlier application and the current one it was not unreasonable for the respondent, particularly if unadvised legally to focus on that use in their objections.
See full decision: LTS/TC/2009/23