Heritable Property – Title Conditions – Discharge or Variation – Real Burdens – Prohibition of alterations without consent and restriction to one house – Proposed substantial extension and also erection of additional house in garden ground – Reasonableness – Title Conditions (Scotland) Act 2003, Sections 98, 100

Corstorphine & Shand v Fleming & Ors
2 July 2010

The proprietors of a large plot at one end of a crescent consisting of around 20 houses constructed about 45 years ago applied for variation of title conditions restricting alteration or additional development. Individual plots had been sold off by the local authority with similar feuing restrictions. The applicants had obtained detailed planning permission for a substantial extension and also outline permission to erect an additional house in their garden ground to the rear and side. Neighbouring proprietors and some proprietors in the crescent, who were all agreed to be benefited, objected. The application was disposed of on the basis of written submissions and a site inspection, with parties’ consent.

Held, allowing the application, the two proposals raised different issues. The proposed new house in the garden would mirror a similar development opposite, at the other end of the crescent, and appeared to have virtually no impact on the other houses in the crescent. It might appear to have an impact on the garden of the objector immediately to the rear, but the shape and alignment of the plots and gardens negatived that. The Tribunal was entirely satisfied that variation to permit this proposal was reasonable. The proposed extension gave more concern because of its scale: it would create a significantly larger housing mass. However, with the benefit of the detailed plans, the Tribunal considered that the effect on the immediate neighbour would actually be quite limited. As far as the general impact on the crescent was concerned, it would have been regarded differently if it had been in the middle or main part, but having regard to its particular location, it would, although noticeable, again have quite a limited impact. On a consideration of the statutory factors, the application in respect of each proposal was reasonable.

Authorities referred to: None

See full decision:  LTS/TC/2010/06