OPINION

Trevor Barr v Annabel Macrae

Introduction and Summary

[1] This is one of three applications, under Section 90(1)(b)(i) of the Title Conditions (Scotland) Act 2003 (“the Act”), for renewal of two title conditions in a 1908 conveyance of an area of ground (“the subjects”). The conveyance was of additional garden ground for a late Victorian villa. When the villa was subsequently divided into two flats, this additional ground remained in the same ownership as the lower flat. The applicant, the benefited proprietor, owns the upper flat. The respondent owns the lower flat. The respondent now wishes to develop by building a single storey house on the subjects. She has planning consent in principle. The respondent, as burdened proprietor, intimated her proposal to terminate the burdens under the “Sunset” rule (Section 20). Three applications for renewal of the burdens were made. At the hearing, only one application, in relation to one of the two title conditions, was maintained. This is a real burden prohibiting building. The respondent accepted that the applicant, as owner of the upper flat, is benefited under the title condition. Although she opposed renewal, the respondent’s position at the hearing was that she was not seeking a discharge but rather would accept a variation so as to permit the building of a single storey dwellinghouse. The applicant sought renewal unvaried, so that the proposed house could not be built, which failing a variation involving more detailed conditions in relation to the proposed house. The applicant also sought an award of compensation in the event of the title condition being varied.

[2] The Tribunal has decided as follows:-

(i) The applicant has failed to satisfy us that it is reasonable to grant the application to renew this title condition unvaried;

(ii) The title condition should be varied as proposed by the respondent, viz. so as to permit the building of one single storey dwellinghouse and reasonable ancillary outbuildings including garage, shed and greenhouse; and

(iii) The applicant’s claim for compensation is refused.

The Title Condition

[3] The subjects of this application are an area of ground extending to approximately 0.23 Ha now forming part of the garden grounds on the west side of ‘Hartley House’, Viewfield Terrace, Dunfermline. A Disposition of the subjects by the Trustees of Robert Taylor in favour of Alice Mary Sophia MacLaren or Marshall recorded in the Fife Division of the General Register of Sasines for Dunfermline 14 December 1908 provided inter alia as follows:-

“(First) In respect that under the existing titles of feuars and proprietors at Viewfield Terrace granted by the said deceased Robert Taylor he undertook not to erect or permit to be erected any buildings on that portion of my said property (including the subjects before disponed) of Viewfield which lies opposite to the pieces of ground thereby disponed between Viewfield Terrace on the south and a line parallel to and at a distance of forty feet south from the south wall of Viewfield House on the north, the above quoted restriction shall also apply to our said disponee and her foresaids and the subjects hereby disponed, and she and her foresaids shall not be at liberty in time coming to erect any buildings on the said subjects hereby disponed or to use the same for any purpose which may be prejudicial to the amenity of the district.”

Procedure

[4] The respondent, as proprietor of the Lower Flat at Hartley House, intimated a Notice of Termination in relation to the title condition and another title condition prohibiting the planting of trees, etc. Applications for renewal of these title conditions were made by the applicant in his capacity as owner of the upper flat; the applicant in his capacity as owner of a flat in Viewfield House, immediately to the north of the subjects; and the proprietor of another flat in Viewfield House. Other proprietors in Viewfield Terrace were benefited under the title condition. No other application for renewal was received. The respondents initially challenged the entitlement to benefit of each applicant under both conditions. Prior to the determination of these objections, as preliminary issues, the respondent accepted that the applicant was benefited, as proprietor of the Upper Flat of Hartley House, under the title conditions. The Tribunal determined that the applicants as proprietors of flats at Viewfield House were not benefited under the burden containing the building prohibition. At the hearing on the merits, the applicant was represented by Mr Kordula, Solicitor, of Messrs W. & A.S. Bruce, Dunfermline, and the respondent by Mr Marshall, Solicitor, of Messrs Moore Marshall, Falkirk. At the commencement of the hearing, Mr Kordula indicated that only the application by Mr Barr in his capacity as owner of the upper flat of Hartley House was now being maintained, and that only in relation to the building prohibition. The other title condition, which the applicants did not in the event seek to have renewed, will accordingly be discharged and is not considered further. Mr Marshall intimated that the respondent would accept variation of the title condition so as to permit the building of one single storey dwellinghouse together with reasonable ancillary buildings including garage, shed and greenhouse, i.e. she would not seek an order discharging the burden. Mr Kordula indicated that in that event the applicant would seek to add further conditions, viz. that the house would be stone built; would be within 3 metres of the western boundary of the subjects; would be screened; and would not exceed 5.2 metres above ground level. Mr Marshall indicated that the respondent opposed such additional conditions and that such matters should be for consideration by the planning authority. The applicant also maintained a claim, in the event of failure of the application, for compensation under Section 90(6) and (7) of the Act, stated at £50,000.

[5] The respondent led in evidence. Mr Marshall called the respondent, Ms Macrae, and Stuart Shand, Dip Arch, RIBA, ARIAS, a chartered architect who spoke to indicative design proposals for a dwellinghouse on the subjects, to give oral evidence. Mr Kordula called the applicant to give oral evidence. Both sides lodged documentary productions. The Tribunal made a site inspection, accompanied by the applicant who gave access to the interior of the upper flat.

Authorities referred to:-

Smart v Myerscough & Ors LTS/LO/2001/32,33, 1.3.2002
Ord v Mashford 2006 SLT (Lands Tr) 15
Anderson v McKinnon LTS/TC/2006/4, 12.1.2007
Blackman & Matheson v Best LTS/TC/2007/29, 28.1.2008
Council for Music in Hospitals & Ors v Trs for Richard Gerard Associates LTS/TC/2006/61 and 2007/01, 5.2.2008
McClumpha v Bradie LTS/TC/2007/34, 4.8.2009
Corstorphine & Shand v Fleming & Ors LTS/TC/2010/06, 2.7.2010

The Facts

[6] On the basis of parties’ agreement, the evidence and submissions and our site inspection, we made the following findings of fact.

[7] Hartley House lies to the south east of Dunfermline town centre, within the Town Centre Conservation Area, and is an imposing detached stone and slated Victorian villa built about 1895. Immediately to the north of Hartley House in an elevated position overlooking the garden is Viewfield House, dating from the late 18th century. In the late 19th century much of the Viewfield area was sold off in various lots, on some of which houses in Viewfield Terrace to the south-west were built. Hartley House, and other villas on the east side, were built. The 1908 Disposition of the subjects was a further disposition of a substantial area (approximately 0.23 Ha) of garden ground on the west side of Hartley House, immediately to the south and in front of Viewfield House. This substantially enlarged the garden of Hartley House to approximately 0.43 Ha. The house lies close to the eastern boundary. The boundaries to the south and west, which are marked by a low boundary wall no higher than 1 metre, are lined by mature trees and there are extensive areas of mature shrubs within the garden ground which generally slopes towards the south. To the west is Viewfield Terrace which comprises, across the street, semi-detached Victorian villas the majority of which are now in office use. Viewfield Terrace turns sharply eastwards to form the southern boundary of the subjects and Hartley House. In this section of the street the houses, also across the street from Hartley House, are predominately in residential use. To the east of Hartley House is a public park. Viewfield House, although originally a substantial home, was subsequently used as offices and a craft school before falling derelict. In about 1983 the Local Authority converted Viewfield House into eight flats. There is a large public car park to the north of Viewfield House and a small area of garden ground with a somewhat untidy residents’ parking area between Viewfield House and the boundary of the subjects.

[8] In 1950 Hartley House was divided to create two separate flats, the lower flat having accommodation on ground and basement levels and the upper flat having accommodation at first floor. Most of the garden ground, including the subjects, was retained along with the lower flat, subject to a right of access in favour of the upper flat. The applicant acquired the upper flat in about 1982. The respondent, along with members of her family, acquired the lower flat in 2003 and now owns it outright. The respondent converted the basement into a further separate flat. The upper flat is partially refurbished but work has been suspended. The applicant has also tried to create additional accommodation within the roof space but progress on this has been delayed. The upper flat is presently unoccupied with some windows boarded up.

[9] The upper flat of Hartley House is accessed towards the rear of the west elevation by way of an external stairway with a further set of internal stairs leading up to a hallway. The principal rooms face south. On the west elevation, facing the subjects, there are two rooms with windows overlooking the garden and the lawn in the subjects, namely the kitchen and a living room. The bathroom window also faces west but it has opaque glass.

[10] At present the main shared vehicular access to Hartley House is from the south west corner of the property very close to a sharp, blind, right-angled corner where Viewfield Terrace turns from running roughly north-south to running east-west. Visibility is further restricted by mature shrubs and trees on either side of the drive which leads up to the front of the house. The main drive then runs to the east of Hartley House to a rear parking area where there is a garage in shared ownership. Another short section branches off on the west side of the house, affording direct vehicular access to the entrance stairway of the upper flat. A separate pedestrian access from Viewfield Terrace, approximately 20m to the east of the main entrance gate, leads by way of a gated entrance and steps to the main drive at the front of Hartley House. From the rear north west corner of the property there is a shared vehicular rear access, at present apparently unused, from the public car park adjoining Viewfield House.

[11] The subjects have a south frontage to Viewfield Terrace extending to approximately 50m and a western return frontage also to Viewfield Terrace of approximately 40m. The proposed development site forms, broadly, the upper, northern part of the subjects and extends to 0.16 Ha. It is bounded to the west by Viewfield Terrace, to the north by a stone wall adjoining the Viewfield House car park, to the east by an existing stone wall some 4.5m from Hartley House and to the south largely by the existing access drive. Much of the site comprises a level grassed former tennis court on the east side of the subjects. The site is well screened by trees and shrubs to the west and south but is overlooked by Viewfield House and the windows of the kitchen and living room on the side wall of the upper flat in Hartley House.

[12] Subject to a number of relatively standard conditions, planning permission in principle was granted by Fife Council in May 2010 for the erection of a single storey dwellinghouse. A site plan and design statement were lodged with the planning application which indicated the approximate position of the proposed house towards the north east quadrant of the site, with an L-shaped building footprint facing south west. Subject to detailed planning approval being obtained, the respondent’s architect envisaged a single storey house, with a footprint of approximately 150m2, being located about 15m from the west gable of Hartley House and approximately 5m from the boundary wall with Viewfield House. The proposed building had not been designed but a pavilion style of house is envisaged with a ridge height of approximately 5.2m above ground level. Existing trees, with two exceptions, would be retained. The existing pedestrian access would be modified and widened to meet Fife Council’s requirements for a new vehicular access and it would rejoin the existing vehicular access just to the west of Hartley House. The present access drive would be retained for pedestrians.

Parties’ Submissions

[13] Mr Marshall spoke to written submissions. After reviewing the facts and evidence about the development proposal, he addressed the factors listed in section 100 of the Act. The character of the neighbourhood of Viewfield Terrace had changed significantly (factor (a)), with mixed commercial/residential use and larger properties being sub-divided. The sub-division of Hartley House was another change. The burden conferred no significant benefit on the benefited property (b) in relation to a proposed single storey house, their being no special outlook from the windows from which the proposed house would be visible and the mature gardens remaining in place. The burden significantly impeded the enjoyment of the burdened property (c), the garden being too large for one dwellinghouse and difficult and costly to maintain. The proposed development was a reasonable use of land and there was a potential loss of the proceeds of development. (d) was not relevant. 100 years had elapsed since the burden was created (e), a highly significant factor in this case, given the changes in circumstances. The burden was created at a time when there was no public planning regime, for the benefit of adjoining feus on Viewfield Terrace (f), such benefit being soon after diminished by the growth of trees and the boundary wall. There was no evidence of any intention to confer any specific benefit on Hartley House, the burdened land having at one time been within the same ownership. The grant of planning permission in principle was highly relevant (g), and objections on traffic and safety issues, already considered by the planning authority, were not relevant to the Tribunal’s consideration. The issue of compensation was not relevant when discharge or variation would not impair the amenity of the benefited properties (h). (i) was not relevant. No other relevant matters were raised (j). Mr Marshall made some observations on the witnesses’ evidence, and submitted that it was arguable that a well designed and finished house would be at least as good as the present outlook. Reference was made to Ord v Mashford; Anderson v McKinnon; McClumpha v Bradie; and Smart v Myerscough.

[14] Mr Kordula addressed the factors listed in Section 100. In relation to changes of circumstances (a), he submitted that the amenity of the area had not changed to any degree because the mixed residential and commercial area was possibly quieter than the originally purely residential area. There had always been traffic in the street. The title condition had been created to protect proprietors in Viewfield Terrace, including Hartley House, which was incorporated into the common scheme. The house still enjoyed the benefit of the condition (b), as it overlooked the subjects. The fact that it might be the only benefited property still enjoying that benefit did not preclude reliance on it. The purpose of the condition (f) was to preserve the amenity of Hartley House. The development would severely prejudice the views. The respondent was unwilling to pay compensation (h). The access was another factor (j): it would be severely affected by the increase in traffic and by vehicular access crossing pedestrian access, increasing the risk. The change in the driveway would change the character of the property. The proposed house did not tie in with the character of the area. Mr Kordula spelt out the additional conditions which should be imposed if the Tribunal varied the conditions so as to permit the building of one house. He also made some observations on the witnesses’ evidence. Reference was made to Blackman and Matheson v Best & Ors; Council for Music in Hospitals & Ors v Trs for Richard Gerard Associates; and Corstorphine & Shand v Fleming.

[15] Mr Kordula invited the Tribunal to award compensation of £50,000 in line with Mr Barr’s evidence that the value of the upper flat would be diminished by that amount.

[16] Mr Marshall opposed the claim for compensation. The evidence of Mr Barr, who was not a qualified surveyor, should be disregarded.

Tribunal’s Consideration

Merits

[17] Although the respondent initiated these proceedings by intimating a proposal to register a Notice of Termination, she is not in fact now asking for discharge of the burden and would be content with variation so as to permit the building of a single storey house. We can therefore consider this application in the light of that proposal. However, we should bear in mind that there are no detailed plans of the proposed house. One possibility in such circumstances, if we considered that in the absence of detailed plans it would be reasonable to keep the burden in place, would be to grant the application, leaving it open to the respondent to prepare detailed plans and, if the applicant as benefited proprietor did not consent, bring her own application under the Tribunal’s “ordinary” jurisdiction to discharge or vary.

[18] In this procedure, we have to consider the same general issue of reasonableness, under Section 98 of the Act, and to have regard to the same list of factors, in Section 100, as under our ordinary jurisdiction. However, the onus is reversed and it is for the applicant, the benefited proprietor, to satisfy us that it is reasonable to grant the application and renew the burden. Onus is often not in the end of the day of great importance, but it does mean that to the extent that questions arise about, for example, the original purpose of the burden there may be some initial onus on the applicant as benefited proprietor. We note that the parties made only limited reference to the alternative part of the burden, prohibiting use prejudicial to the amenity of the district, and we do not think that it requires separate attention.

[19] We start with some observations on the evidence and on our site inspection. We require to view matters objectively, putting any personal motivation or considerations of either party out of mind. There appears unfortunately to have been animosity between the applicant and the respondent but the rights and wrongs of that form no part of our consideration. We should also take no account of the present state of the applicant’s property.

[20] This is obviously a sensitive site in the Conservation Area close to the historic part of Dunfermline, and we have no doubt that the planners will have had that in mind when considering the outline application and will again have it in mind when they consider whether to grant full consent. The grant of outline consent, however, for one dwellinghouse reinforces our own impression that this is an obvious development site within a very large garden.

[21] Owners of the upper flat would no doubt prefer not to see a house built in the garden of the lower flat, but a single storey house developed in compliance with planning rules about, for example, overlooking will not, to our mind, seriously affect the amenity and outlook of the upper flat. It will be visible through two windows on the west, side wall, those of a kitchen and a sitting room. The main rooms, and the main aspect, of the upper flat are on the front, south side. Although the side aspect is attractive and dominated by trees and shrubbery, it does also include a very prominent building, Viewfield House, as well as parts of one or two other, more distant, houses in Viewfield Terrace. It can, we think, be safely assumed that the main aspect of the new house would be on the other side. We also noted some evidence from the respondent about building densities and although it is not possible to make definitive findings on that, we are of the clear view that the proposed house will not occupy a large proportion of the development site. The house would in our view sit within a natural setting and not, from the perspective of a viewer in the upper flat, dominate it. We feel able, in the circumstances of this case, to reach this view on the extent of the effect on the amenity of the upper flat on the basis of limitation to a single storey house and without any more detailed plans.

[22] One dispute in the evidence related to the respondent’s proposal (which would be a requirement under the planning consent) to re-arrange the vehicular access to the front of Hartley House. Having seen the present position of the main gate, beside the sharp bend in Viewfield Terrace and also obscured by trees, we have no hesitation in accepting the respondent’s view, based on her experience, that this is at present an unsafe and unsatisfactory access. We completely reject the applicant’s evidence to the opposite effect. We do not find it at all surprising, or in any way unreasonable, that the respondent should plan to move this entrance to a position further along the street, a proposal which she had apparently pursued even before applying for planning consent for the house. Although the new section of driveway requires to curve round a large tree, we see no reasonable basis for the applicant’s opposition to it. It would not, to our mind, change the character of the area in front of Hartley House. The width of the new vehicular entrance gate would be similar to that of the present one. The situation in relation to safety of young children or pets would not be significantly different from the present position.

[23] We turn to our consideration of the factors listed in Section 100. It is often appropriate to start with factor (f), the purpose of the title condition. We think it unlikely that the purpose of this burden was to preserve the amenity of Hartley House. To the contrary, it was imposed upon sale of the subjects to the owner of Hartley House. As discussed in the Tribunal’s Opinion on the preliminary issues, this was a provision by an owner of land, who had previously, upon feuing plots in the vicinity with a view to building the houses around Viewfield Terrace, undertaken not to build on this specified area of his remaining land. In the disposition containing this burden, he was transmitting this burden to the owners of Hartley House. The preamble to the burden specifically refers to the background of having undertaken the burden in favour of Viewfield Terrace owners. Although the respondents have accepted that the upper flat proprietor at Hartley House is, following the division of that property, now benefited, there is nothing to indicate that such division was in contemplation when the burden was created. Hartley House could perhaps be seen as one of the Viewfield Terrace properties, but if it was within the class of properties originally similarly benefited, that would mean that the benefited and burdened properties were in the same ownership and occupied together. The Feu Charter, apparently granted in 1896, in respect of the original plot of Hartley House, has not been produced to us (although the burdens imposed in it are narrated in the burdens section of the respondent’s Land Certificate), so this is something of a grey area. At all events, we cannot discern any purpose of protecting the owner of the upper flat at Hartley House against development on the subjects by the owner of the lower flat. This is not in our view a factor to which the applicant can look for support.

[24] As far as changes in circumstances are concerned (factor (a)), there has been little physical change, except perhaps the introduction and gradual increase of vehicular traffic in Viewfield Terrace. There have, however, been two types of change in the vicinity, viz. the introduction of a commercial element making Viewfield Terrace a mixed commercial and residential area, and the sub-division of properties, particularly Viewfield House and Hartley House itself. We accept Mr Kordula’s submission that the former of these changes has not really affected the amenity of Hartley House and has no significant bearing on the issue before us. The sub-division of Hartley House, however, involves a significant change in the character of the burdened property: it was a substantial detached house with a large garden, but is now a lower flat with a garden which may these days readily be seen as inappropriately large. Further, the property now accepted as benefited is an upper flat which has only become a separate property since the burden was created.

[25] Notwithstanding these considerations in relation to purpose and change of circumstances, the benefit, on the basis that it is accepted for present purposes as valid, does clearly benefit the applicant as owner of the upper flat to an extent (factor (b)). It would of course protect against a building of unrestricted height. However, on the basis of the respondent’s willingness to accept only variation of the burden so that it will continue to protect against building higher than one storey, the question here is the extent of benefit in protection against a one storey house. We have indicated above our view on the evidence: there is some benefit but it is relatively limited because the proposed house will not seriously interfere with the amenity of the upper flat.

[26] The burden impedes enjoyment of the respondent’s burdened property to a very significant extent, by preventing her from using the subjects, an obvious residential development site, for development. Although there is no express reference to any maintenance or upkeep obligation, a garden of this size with, for example, trees which may require attention from time to time is a considerable responsibility which in practice can only be avoided by developing the site.

[27] Factor (d), in relation to positive obligations, is of no relevance in this case.

[28] Factor (e) relates to the age of the burden, in this case now just over 100 years. This tends in practice to be linked with more general change and to overlap with factor (a), making undue emphasis on it as a separate factor inappropriate. We can of course note that the burden is of an age which the legislation fixes as at least potentially obsolete. The applicants also pointed out that it pre-dates public planning legislation, which is of some significance having regard to the nature of the burden. We do not, however, regard this factor viewed on its own as adding significantly to consideration of the reasonableness of this application.

[29] The outline planning consent gives some support to the respondent’s position (factor (g)) as indicating, in general terms, the reasonableness of a proposal to develop. This is often, however, a factor of very limited weight when it is recognised that the particular private interests protected by a title condition may involve very different considerations.

[30] The respondent clearly does not consider compensation appropriate (factor (h)). However, this is often a neutral factor because it would be a condition of any order discharging or varying the burden that any compensation awarded by the Tribunal would have to be paid. There is nothing in the present case to alter that position.

[31] Factor (i) does not apply in this case. Mr Kordula submitted that there was one other material factor (factor (j)), in relation to vehicular access and traffic. As we have indicated, the proposed change in the access point appears to us entirely appropriate and indeed something which is not prohibited by this burden and might well happen anyway. We do accept that the building of one more house, without its own separate access, would increase the amount of traffic on part of the driveway, but we do not consider this material. An occupier of the upper flat has already to envisage traffic associated with the ground and basement flats. We accept that a proprietor of the upper flat may have to consider the safety of young children or pets, but we do not consider that its character, or the level of hazard, would be significantly changed.

[32] Drawing our consideration of these factors together, we have not been satisfied that it would be reasonable to grant this application to the extent of renewing the burden unvaried so as to prevent the respondent from proceeding with her proposal for a single storey dwellinghouse on the subjects. We find that this is a burden which was not created with protection of Hartley House in mind and that the sub-division of the house is a significant change of circumstances. We do not think that this ground should be seen as the protected setting of the upper flat. We consider that limited residential development is an entirely natural use of it. The burden is accepted as remaining valid, but the balance of reasonableness as between the two proprietors seems to us clearly to favour the respondent whose reasonable development proposal, for which she has outline planning consent, is impeded, whereas we have found the effect of a development, limited to one single storey house, on the amenity of the applicant’s property quite limited. The additional factor referred to by the applicant, namely the respondent’s accompanying proposal to alter the vehicular access, does not, on our view of the situation at the property, add any weight at all to the applicant’s case.

[33] We have therefore decided to allow the application only to the limited extent of varying the title condition so as to permit the respondent to erect a single storey dwellinghouse.

[34] That leaves two other issues for consideration: firstly, the terms of the variation, i.e. whether to impose any further conditions, as submitted by the applicant; and secondly, the applicant’s claim for compensation.

Terms of Variation

[35] We have considered the additional conditions suggested by the applicant in the event of our deciding to vary so as to permit one single storey dwellinghouse, but do not consider any of these conditions justified in the circumstances. Firstly, we consider that the planners will give adequate consideration to the appropriate materials to be used on the exterior of the proposed house and it would not be reasonable to insist upon it being stone built. Secondly, we consider that the suggestion to locate the house beside the west boundary would be an unreasonable restriction on the respondent’s choice of site, and indeed may well create problems in relation to ground levels, trees, etc. Thirdly, we do not consider it appropriate to add a condition, which could only be in vague terms, about screening: planning rules in relation to issues of privacy and overlooking will in our view provide sufficient protection in this respect.

[36] Finally, we have reached the view that limitation, in the varied burden, of the height of the proposed house, is also not appropriate in the circumstances of this case. The applicant’s suggestion of 5.2 metres was in line with the evidence of the respondent’s architect and it might seem appropriate to protect against any possible departure from that indication. In the present case, however, on the basis of the conclusions summarised in Para [32], we do not consider that any further limitation, beyond the restriction to one single storey house, can be justified. We also again bear in mind that this is a site which will receive close consideration from the planners.

Compensation

[37] We reject the applicant’s claim of compensation.

[38] The claim was based on Sections 90(6) and (7) of the Act. We do have power to award “such sum as the Lands Tribunal may think it just to award … to compensate for any substantial loss or disadvantage suffered … in consequence of the discharge or variation.”

[39] However, the applicant’s figure of £50,000 was based on his evidence as to the seriousness of the effect on the amenity of his property, a view which we do not share. Further, it gave every impression of being a figure simply plucked out of the air and, the applicant not being a qualified valuer, appeared to us to lack any proper basis.

[40] It is not essential to lead formal expert evidence of such loss or disadvantage. We do appreciate from our own experience and previous cases that it can be difficult to obtain valuation evidence, based on actual sales or valuations, demonstrating an effect on value of lifting a title restriction of this kind. We have considered whether there is in this case any basis for a more modest award. We must consider whether there is “substantial” loss or disadvantage. In all the circumstances of this case, we are not persuaded that the prospect of a single storey house on the subjects would cause any substantial loss or disadvantage, compared to the present position, to the applicant as owner of the upper flat.

[41] We would mention finally that in the event of any claim for expenses being made, this can be dealt with on the basis of written submissions in accordance with our normal practice. Reference is made to Section 103(1) of the Act. However, we hope that any question of expenses can be resolved by agreement between the parties.

[42] We should also note that the Tribunal’s formal Order also refuses the other two applications which were not insisted upon, and discharges the other title condition termination of which was ultimately not opposed.


Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 21 March 2012

Neil M Tainsh – Clerk to the Tribunal