Heritable property – Title Conditions – Variation or discharge – Land belonging to National Trust – Condition of conservation agreement preventing development of housing – Whether variation or discharge reasonable – Factors – Title Conditions (Scotland) Act 2003.
The National Trust for Scotland acquired an estate comprising listed buildings, gardens and a designed landscape. It also acquired surrounding fields which it subsequently sold in 1962, subject to a conservation agreement registered in terms of the National Trust for Scotland Order Confirmation Act 1938. That agreement contained a condition preventing use of the fields, amongst other things, for the erection of dwelling houses. The land was adjacent to a village. In 2012 the land was allocated in the local development plan for housing and employment use. The first subjects were adjacent to a tree belt forming the perimeter of the designed landscape and were allocated for housing. The second subjects were separated from the designed landscape and first subjects by a main road and were allocated for further housing and employment use. The landowner applied for discharge of the condition.
Held that it was reasonable to vary the condition insofar as affecting the first subjects so as to permit two one and a half storey buildings, and to discharge the condition altogether insofar as affecting the second subjects. A full development at the first subjects would be excessive in relation to the harm which would be done to the setting of the designed landscape at the buffer zone between the tree belt and village. On the other hand the benefit achieved by the title condition affecting the second subjects required to be seen in the light of its purpose to preserve the designed landscape in the public or national interest (factors (b) and (f)). Although the proposed development was unattractive from the perspective of the village itself, the designed landscape had not been designed to integrate with village. The impact upon the setting of the designed landscape was minimal from the perspective of visitors to the property and could be attenuated, and the benefit was outweighed by the apparent need in the public interest for housing and employment land at the location and the extent to which the enjoyment of the burdened land was impeded (factors (a), (c) and (j)).
See full decision: LTS/TC/2013/23