Heritable Property – Title Conditions – Discharge or variation – Real burden – Community burden involving building restriction – Proposal to build extension to rear of house in densely developed estate – Neighbouring proprietor to rear at slightly lower level – Overlooking – Impact on privacy – Reasonableness – Title Conditions (Scotland) Act 2003, Sections 98, 100

Heritable Property – Title Conditions – Variation – Compensation – Building restriction – Extension to rear increasing overlooking – Whether effect on value – Whether ‘substantial loss or disadvantage’ – Title Conditions (Scotland) Act 2003, Section 90(6),(7)

Jarron & Anr v Stuart & Anr
23 March 2011

A community burden in the deed of conditions for a modern quite densely developed housing estate restricted further building. The applicants sought variation to permit them to build an extension to the rear of their house. The objectors’ house bordered the applicants’ to the rear and lay on slightly lower ground. The proposal would increase the already substantial overlooking. The applicants offered to accept an obligation to add a section of trellis fencing to heighten the mutual boundary fence and screen the extension. There were conflicting opinions on the effect of the proposed extension on the value of the respondents’ house. The objector had a secondary argument relating to the proposal for double patio doors on the rear wall leading to a platform and steps down to the applicants’ garden.

Held (1) The application was reasonable. The primary purpose of the burden was to maintain the integrity of the estate in the interests of individual owners as well as the community. The extent of impact of proposals on neighbours was an aspect of that purpose, but it was not accepted that there was a purpose of preventing any such impact. The proposed extension would not affect the visual amenity to any significant degree, but would increase the overlooking, particularly by persons using the patio doors, platform and steps. This impact could be substantially reduced by the additional trellis fencing or by planting hedging or trees within the respondents’ garden. An application might be reasonable despite causing some loss, which, if ‘substantial’, could be the subject of a compensation order.

(2) On the basis of the application as it stood, the Tribunal accepted that there would be an effect on saleability and a reduction in value, assessed at £2,500, of the respondents’ property and compensation in that sum would be awarded. The Tribunal also, however, indicated that if the applicants were to amend their proposal to remove the patio doors, compensation would be reconsidered.

The applicants subsequently amended their proposals to remove the patio doors and substitute a single door on the side wall. On this amended basis, the Tribunal held that any reduction in value would be minimal and in any event that it could no longer be held that there was ‘substantial loss or disadvantage’ and no compensation was awarded.

Main authorities referred to:-

Ord v Mashford 2006 SLT (Lands Tr) 15
Anderson v McKinnon LTS/TC/2006/04

See full decision:  LTS/TC/2010/18 (Merits & Compensation) and LTS/TC/2010/18 (Addendum)