OPINION

Mary O’Gorman (Applicant) v John Love and Margaret Love (Respondents)

Subjects: 80 East King Street, Helensburgh

Introduction

[1] This is an application under section 90(1)(a) of the Title Conditions (Scotland) Act 2003. The applicant seeks discharge of title conditions in terms of ss (1)(a)(i) and, in terms of sub-para (ii), determination of a question as to the validity or enforceability of the title conditions. The applicant owns the subjects the dwellinghouse 80 East King Street, Helensburgh. She wishes to subdivide her land in order to build a second house in the east section of the garden. The respondents are Lt John Love (Royal Navy) and his wife who own No. 82. Their house is immediately next door to the east. They oppose the application.

Procedure

[2] The application was intimated upon other neighbouring proprietors, including the owners of the adjacent Nos. 74, 76 and 78 East King Street. Only the respondents lodged representations. Parties consented to the case being determined on the basis of written submissions and a site visit. The Tribunal were agreeable to this procedure. Both parties represented themselves. Given the legal point in issue, we referred parties to the case of Thomson’s Executor. The Tribunal visited the site on 11th December 2018.

Legislation

[3] The Title Conditions (Scotland) Act 2003 (“the 2003 Act”) provides:-

“52 Common schemes: general

(1) Where real burdens are imposed under a common scheme and the deed by which they are imposed on any unit, being a deed registered before the appointed day, expressly refers to the common scheme or is so worded that the existence of the common scheme is to be implied (or a constitutive deed incorporated into that deed so refers or is so worded) then, subject to subsection (2) below, any unit subject to the common scheme by virtue of–

(a) that deed; or

(b) any other deed so registered,

shall be a benefited property in relation to the real burdens.

(2) Subsection (1) above applies only in so far as no provision to the contrary is impliedly (as for example by reservation of a right to vary or waive the real burdens) or expressly made in the deed mentioned in paragraph (a) of that subsection (or in any such constitutive deed as is mentioned in that subsection).

53 Common schemes: related properties

(1) Where real burdens are imposed under a common scheme, the deed by which they are imposed on any unit comprised within a group of related properties being a deed registered before the appointed day, then all units comprised within that group and subject to the common scheme (whether or not by virtue of a deed registered before the appointed day) shall be benefited properties in relation to the real burdens.

(2) Whether properties are related properties for the purposes of subsection (1) above is to be inferred from all the circumstances; and without prejudice to the generality of this subsection, circumstances giving rise to such an inference might include–

(a) the convenience of managing the properties together because they share–

(i) some common feature; or

(ii) an obligation for common maintenance of some facility;

(b) there being shared ownership of common property;

(c) their being subject to the common scheme by virtue of the same deed of conditions; or

(d) the properties each being a flat in the same tenement.

122 Interpretation

(1) In this Act, unless the context otherwise requires–

“facility burden” means, subject to subsection (2) below, a real burden which regulates the maintenance, management, reinstatement or use of heritable property which constitutes, and is intended to constitute, a facility of benefit to other land (examples of property which might constitute such a facility being without prejudice to the generality of this definition, set out in subsection (3) below);

(3) The examples referred to in the definition of “facility burden” in subsection (1) above are–

(a) a common part of a tenement;

(b) a common area for recreation;

(c) a private road;

(d) private sewerage; and

(e) a boundary wall…”

Cases

Hislop v MacRitchie’s Trustees (1881) 8 R HL 95
Brown v Richardson LTS/TC/2006/4, 8 May 2007.
Franklin v Lawson 2013 SLT (Lands Tr) 81
Thomson’s Executor LTS/TC/2016/ 01, 8 August 2016.

Textbook

Gordon, Scottish Land Law (3rd ed) paragraphs 3.37 et seq; 3.44

Other

Official Report, Scottish Parliament, Justice 1 Committee 10 Dec 2002 cols 4371-2

Title conditions

[4] The applicant’s property is registered under Title Number DMB46244 (title plan appended). Burdens entry No. 1 refers to a feu contract containing feu disposition by James Colquhoun (First Party) to Alexander Comrie (Second Party) recorded PRS (Dumbarton) 19th December 1862 (“the 1862 feu disposition”). The entry provides for the erection and maintenance of a dwellinghouse yielding a yearly rent equal to at least £8, “to be built of stone and lime and covered with slates, not exceeding two storeys in height,” erected “of a neat and tasteful design and in a substantial manner” and shall be “of the value of not less than £500, and with the offices thereto shall be placed at all points not less than 20 feet distant from the side of King Street.” The entry contains the following restriction:-

“And it is hereby stipulated and declared that the said second party or his foresaids shall not be entitled to erect any houses or other buildings, or make any erections of any kind upon the said plot or area of ground other than the said dwellinghouse, together with suitable offices thereto of stone and lime and covered with slates; …”

Further on, the entry prohibits various uses and goes on to state:-

“And farther declaring that it shall not be lawful to, or in the power of the said second party or his foresaids to divide the plot or area of ground hereby feued, or to sell, convey or otherwise dispose of any separate part or portion of the same; …”

[5] The title conditions further provide that the second party was bound to enclose the plot “insofar as extending along the street with a stone wall having a neat copestone not exceeding in all 4 feet in height, or with a parapet wall of ashlar work and cope not exceeding 3 feet in height and surmounted either by a neat iron railing of suitable height or by a hedge; and to enclose the same upon all other sides with a suitable and sufficient fence and to keep the said fences in good order and repair in all time coming.” There is provision for the dwellinghouse, offices and fences to be built and maintained to the satisfaction of the first party or his foresaids or his nominee.

Background facts and circumstances

[6] The subjects are in the centre of a row of Victorian villas on the south side of East King Street, Helensburgh. To the north lies Eastend Public Park where there are two football pitches. To the immediate south lies the main railway line to Helensburgh. At the east of the row East King Street is bisected by Adelaide Street. At the corner lies 31 Adelaide Street which is a bungalow, probably constructed in the late 1950s or 1960s. At the west of the row East King Street is bisected by George Street.

[7] The applicant’s subjects No. 80 comprise a villa with substantial garden. The applicant acquired the property in November 2016. She wishes to subdivide the property in order that a house may be built upon the east part of the garden, i.e. her ground lying to the east of the villa. She has produced a survey drawing showing the new plot of some 376.55 sq m. This shows an existing shed, and what we understood to be a now demolished garage on the site.

[8] The applicant applied for planning permission in principle on 1 February 2018. The respondents objected citing various amenity issues. The council’s handling report discusses a site of 369 sq m and describes the application as a proposal for a one and a half storey, three bedroom dwellinghouse with a footprint of 136.53 sq m. Two trees were proposed to be removed within the garden, which were not protected by a tree preservation order or conservation area status. The report concluded that planning permission should be granted subject to the imposition of certain conditions.

[9] Planning permission in principle was granted on 6 April 2018. The conditions include condition 3 requiring no development until approval of (i) the siting, design and external appearance of the proposed dwellinghouse which shall not exceed a single storey, (ii) the footprint of the dwellinghouse shall not exceed one-third of the total plot area, and (iii) a design drawing demonstrating a finished ground floor level showing AOD. The reason for the condition is cited as being in the interests of visual amenity in order to integrate the proposed dwelling with its surroundings. Condition 9 makes detailed provision for parking within the site, including the requirement of a turning area to ensure that all vehicles from both dwellings enter onto East King Street in a forward gear. We infer that the proposal envisages a shared access with the existing No. 80.

[10] The respondents’ property 82 East King Street is also a villa with an extensive garden. They acquired it in July 2014. The westmost face of the house, which includes a single storey extension of traditional design, lies a few feet from the boundary wall with No. 80. There is also an upper floor. The west face is accordingly facing the proposed development site. The boundary wall is traditional sandstone and about 5 feet high.

[11] The respondents’ property is held on Title No. DMB87780. The burdens entry relates to a feu contract containing feu disposition by Sir James Colquhoun (First Party) to Alexander Comrie (Second Party) recorded PRS (Dunbartonshire, Argyll & Bute) 2 November 1865 of one rood, 38.5 poles of ground (“the 1865 feu disposition”). The burdens restricted the second party and his foresaids from erecting more than two dwellinghouses on the ground and provided that it would not be lawful to divide the plot into more than two portions. The conditions required the construction of a dwellinghouse of “stone and lime and covered with slates not exceeding two square storeys in height” and erected “of a neat and tasteful design and in a substantial manner to a value of not less than £500”, and “with the offices thereto to be placed at all points not less than 20 feet distance from the sides of King Street and Adelaide Street.” There was also an obligation to enclose the plot “insofar as extending along the streets with a stone wall having a neat copestone not exceeding in all 4 feet in height or with a parapet wall of ashlar work and cope not exceeding 3 feet in height and surmounted either by a neat railing of suitable height or by a hedge; and to enclose the same upon all other sides with a suitable and sufficient fence and also to keep the said fences in good order and repair in all time coming.” There is also provision for the dwellinghouses, offices and fences to be built and maintained to the satisfaction of the first party or his foresaids or his nominee.

[12] The land comprised in the 1865 feu disposition; i.e. the one rood and 38.5 poles of ground, came to comprise numbers 82 and 84 East King Street. The title sheet pertaining to No. 84 shows that a superior’s consent was obtained in 1958 for the separation of the subjects 84 East King Street with a plot for 31 Adelaide Street. This permitted the construction on the 31 Adelaide Street plot of two semi-detached dwellinghouses. It is, however, self-evident that only one dwellinghouse, namely the bungalow, was in fact constructed. From our own measurements it seems likely that some further land was acquired in addition to the 1 rood 38.5 poles to enable the above subdivision for the bungalow.

[13] To the west of the application subjects lies a large villa comprising the dwellings 74, 76 and 78 East King Street. The relevant burdens entries refers to a feu contract containing feu disposition by Sir James Colquhoun (First Party) to Bethia McIndoe or Orr (Second Party) recorded PRS (Dunbartonshire etc) 18 May 1861 of two roods, 5 poles of ground. There is a restriction upon the second party building more than two dwellinghouses. The conditions are not dissimilar to those discussed above, although the value of the dwellinghouses is stipulated at a yearly rent of £17 and a value of £400 each, and the building line is set at 15 feet from the sides of George Street and King Street. Similar provision is made for enclosing the property with a wall extending along the street, and by a fence on other sides. The burdens also refer to a minute of augmentation, waiver etc recorded GRS (Dumbarton) 31 December 1949 recording that the feu contract had been contravened. We do not go into detail on this matter here, but superior’s consent was given for the sub-division of the building into the three units. We understood the feu also to include the villa now at 72 East King Street, which itself has been partitioned to include what is now 32 George Street at the corner.

Applicant’s submission

[14] The applicant set out her position in some detail in the originating application, an adjustment dated 3 October and provided a full 6 page submission dated 15 November 2018 with supplementary notes dated 20 November and 4 December 2018. We summarise the main points as follows:

[15] The applicant submitted that the 1862 burdens were no longer valid. There had been no notice by the superior seeking re-allotment of the burdens in terms of Part 4 of the Abolition of Feudal Tenure etc (Scotland) Act 2000. Thus the superior’s interest had been extinguished. There was no notice of preservation under the 2003 Act. The title conditions made no reference expressly or implied to a common scheme or a group of related properties such that there could be any benefited property within the meaning of sections 52 and 53 of the 2003 Act.

[16] The subjects No. 80 were not part of a discreet community. The adjacent properties had been part of double feus whereas the present subjects were a single feu. The feus were in any event only for the benefit of the superior and not the neighbouring proprietors. The similarity in the wording of the burdens merely reflected conveyancing practises of the time and the fact that many of the properties were built under feus by the same superior. Similar wording would not have intended to imply a common scheme or group of related properties.

[17] There were no common features between Nos. 80 and 82. There are no elements which are managed together and there are no areas of shared ground, no shared access, no servitude rights or responsibilities and no shared maintenance responsibilities set out in the title.

[18] Turning to the application for discharge, if “neighbourhood” was widely defined, the age and style of the properties was not predominantly Victorian. If neighbourhood was specifically the stretch of East King Street from George Street to Adelaide Street, the plot for No. 84 had been sub-divided and there had been a change in use for the bungalow from residential to a veterinary practice. Certain examples of the partitioning of Victorian houses elsewhere in Helensburgh were given.

[19] The applicant wished to sell part of her property and thereby reduce her footprint and reduce the upkeep. The development of the further house would have an equal but limited impact upon the respondents’ property as well as the applicant’s remaining property. Both existing properties would have windows overlooking the new plot. Window to window privacy would be considered as part of an application for full planning permission. The west facing ground floor windows of No. 82 near the boundary, themselves part of a built extension, did not have views since they were occluded by the wall and vegetation. Neither of the titles provided for a servitude for the right to light. The overlooking windows of No. 82 were of limited significance. The new house would be different to the parties’ respective properties, but it did not follow there would be a detrimental effect. The applicant intends to continue living in her property and accordingly had an interest in maintaining the amenity of the area.

[20] The planning permission in principle determined that the plot was sufficient for development under the planning regulations. Traffic impact and parking were addressed by the condition covering parking within the plot. The parking condition exceeded parking provision for existing properties since Condition 9 requires a turning area to ensure that all vehicles from both dwellings could enter East King Street in a forward gear. The planning conditions also required a drainage scheme.

[21] It was pointed out that the site had had a garage situated there, now demolished.

Respondents’ submission

[22] The respondents have lodged a detailed 5 page objection dated 26 September 2018, and a detailed five page submission dated 29 November 2018.

[23] The respondents disagreed that the title conditions were obsolete. As the conditions stood they forbade the building of another property or the division of the applicant’s land. Their solicitor had informed them of the burdens upon their property when they purchased, who did not say that these were unenforceable.

[24] It was submitted under reference to Thomson’s Executor, that there was a common scheme where the superior had systematically imposed the same conditions on successive feus in the area. With reference to Brown v Richardson it was apparent that there was a scheme with sufficient common characteristics to be described as a common scheme, even although the actual uniformity of the houses etc was not specifically provided for in the relevant deed. Reference was also made to Franklin v Lawson whereby there could be a common scheme other than via a deed of conditions. Reference was also made to Hislop v MacRitchie’s Trustees. The properties were related since they were immediately adjacent.

[25] Turning to the merits of the application for discharge, the division of 84 East King Street took place around 60 years ago. This was at the eastern end of the “Victorian strip” and did not alter the central appearance of the area. The 1950s/1960s was a different era in which the authorities were dealing with a marked increase in population and extreme shortages of housing and the evolution of modernist architecture. The appearance of the only row of Victorian villas facing a public park would be spoiled.

[26] The applicant’s statements indicating that she had had no prior intention of selling off the east part of the garden, and the supposed need for her to reduce her footprint, were suspect given that she informed the respondents of her plan for building within less than a year from moving into her house. Any detriment to the applicant’s residual property would be outweighed by the financial benefit which she would gain from the proposal.

[27] The respondents’ house was only one metre from the relevant boundary wall. This would mean a 160 year old house would be next to a new build site. There was a concern as to window to window privacy. The respondents’ property has enjoyed unobstructed natural light on the western face which includes two teenage children’s bedrooms. There would be 5 windows affected.

[28] There would be additional noise, car fumes and less light and a detrimental effect upon the value of the respondents’ property. The Victorian feel and appearance would be spoiled. The use of the park opposite had recently increased with children’s football matches and the use of an additional pitch, and the road was being used as a main thoroughfare to the town centre and beyond. The development would add to parking and traffic congestion already in existence.

[29] The planning process alone was not enough to protect the rights of others. The planning department had ignored most of the respondents’ objections.

Discussion by Tribunal

Benefited property

[30] The title conditions in this case came into existence as feudal burdens. The superior’s right to enforce the burdens has been extinguished in terms of Part 4 of the Abolition of Feudal Tenure etc (Scotland) Act 2000. The question is whether they have survived with enforcement rights pertaining to other property. There is no question of any neighbouring proprietor having served a notice of preservation in terms of section 50 of the 2003 Act. Whether No. 82 is a benefited property will depend upon whether either section 52 or section 53 applies.

[31] The first issue is whether the properties Nos. 80 and 82 are part of a common scheme as mentioned in those sections. “Common scheme” is not defined by the 2003 Act, although it is touched upon in section 25 (not quoted here). As we indicated in Thomson’s Executor, “scheme” suggests some sort of planned or systematic regulation by the superior over a certain area. It is generally accepted that the requirements for a common scheme include that at least two properties are subject to the burdens, that the burdens affecting the properties be identical or substantially similar, or in some sense equivalent, and probably also for the burdens to derive from a common source. In Thomson’s Executor we accepted that there could be a common scheme where the landowner historically feued out individual building plots separately and consecutively, with each new feu disposition containing similar conditions.

[32] In the present case these factors are all present. The requirements in the successive feu dispositions for each property to erect and maintain a dwellinghouse built of stone and lime and covered with slates “of a neat and tasteful design” of a certain value, with a building line of not less than 20 feet from East King Street, are all factors indicative of a common scheme.

[33] However, the next issue of mutual enforceability is another matter. In terms of section 52, restating common law, it is necessary for the existence of the common scheme to be expressed or implied by the deed by which they are imposed; ss(1); Hislop v MacRitchie’s Trustees Lord Watson at p104. In the present case the 1862 feu disposition gives no express indication that other feuars may have the right to enforce the burdens. The deed entry makes no reference to any uniform feuing plan or a requirement that the superior will impose the same building requirements upon other feuars. So at common law there was no notice of a common scheme in the 1862 feu disposition, and for the purposes of s52 no express or implied reference to a common scheme. Accordingly s52 is inapplicable.

[34] We now turn to s53. Whether No 82 can be a benefited property will depend upon whether it and No 80 are “comprised within a group of related properties.” Ss(2) provides that whether properties are related for the purposes of ss(1) is to be “inferred from all the circumstances”, and, as it were, gives illustrations for such inference by the words “circumstances giving rise to such an inference might include…” It then goes on to specify examples mentioned in sub-paragraphs (a), (b), (c) and (d) (quoted above.) As we indicated in Thomson’s Executor, it is difficult to discern from the statutory examples any particular guiding principle by which it can be established that properties are indeed “related.” We are therefore conscious that the following analysis does little more than discuss the statutory examples in context.

[35] Clearly sub-para (c) (same deed of conditions) and (d) (each property being a flat in the same tenement) do not apply here. Sub-para (a) is problematic in its application. The boundary wall could be described, perhaps rather loosely, as “some common feature” in terms of sub-para (i). It could also be described as a “facility” in sub-para (ii) (cf s122(3)(e)), although there is no express obligation for common maintenance as we discuss below. However, it was pointed out by the applicant that the words in sub-para (a) “the convenience of managing the properties together” have no bearing on the matter because the properties have no history of being managed together. This point was not made in Thomson’s Executor.

[36] The reference to “the convenience of managing the properties together” suggests a degree of management for the properties themselves, either real or hypothetical. The words do not say, for example, “the convenience of managing a common repair…” of some specific item. The wording appears to be consistent with a purpose for the Act to deal with concerns of local authorities owning right to buy housing gradually being brought into private ownership both before and after the appointed day: Scottish Parliament, Official Report, Justice 1 Committee 10 Dec 2002 cols 4371-2, in terms of a statement by Deputy First minister concerning new s48A, now s53: “…it will allow local authorities to complete a common scheme by including units that they have yet to sell in a right to buy housing estate…” A landlord used to managing the estate would no doubt wish to retain some degree of control to enforce the conditions in (to be) sold properties on behalf of existing tenants by some appropriate means. This is a different scenario to the present case. Given the absence of any evidence or likelihood of management or factoring of the properties together we do not think we can attach significant weight to sub-para (a).

[37] This leaves sub-para (b) (“shared ownership of common property.”) We do not think there is shared ownership of common property (our emphasis) here in the conventional pro indiviso sense. Where the boundary did not face the road the title conditions required each proprietor to enclose the respective plot “with a suitable and sufficient fence…” and to keep the same in repair. Strictly speaking the conditions envisaged, perhaps somewhat unusually, for each property to be enclosed by its own fence. Thus there would be two fences, one on each side of the boundary line. The single sandstone wall which now exists is not what was envisaged in the title conditions. It seems to us that absent evidence to the contrary, the wall should be regarded as lying on the boundary line, with each party owning up to the centre line of the wall: see Gordon, paragraph 3.44. Strictly speaking therefore, the wall is a mutual wall, as opposed to common property. Any right to repair the other owner’s side of the wall and seek a contribution would have to be ascertained by common law, since none is expressed in the titles. This is a distinguishing feature from Thomson’s Executor where the boundary fence was declared to be common property to be maintained at expense of both proprietors. So on the face of it there is no shared ownership of common property. Thus sub-para (b) does not apply. We would reserve our opinion as to the case of mutual gables, where the detailed rules of property may be somewhat different: op cit 3.37 et seq.

[38] In general terms it seems to us that the titles have kept the respective properties separate. There is nothing which suggests a legal relationship between the properties such as the existence of common property. In these circumstances we are not persuaded that numbers 80 and 82 can be described as being comprised within a group of related properties for the purposes of s53(1). Accordingly we conclude that No. 82 is not a benefited property for the purpose of enforcing the title conditions in the No. 80 title.

[39] The owners of Nos 74 - 78 did not enter the process. Their titles are in similar terms to the No. 80 title. In terms of making an appropriate order, we are also satisfied that these properties are not benefited for the purpose of enforcing the relevant No 80 title conditions.

Application for discharge

[40] In these circumstances it is not necessary for us to go on to consider the application for discharge on the basis of the factors provided by section 100 of the 2003 Act. However, in case we are wrong in the above analysis, we would discuss as follows. We need deal only with the issues in play at the instance of the respondents as owners of No. 82.

[41] In terms of factor (f), on the face of it the purpose of the title conditions was to require the construction and maintenance of a high quality residential property within a residential area. However, as we have indicated above, the purpose of the condition was from the perspective of the superior alone; the original purpose did not involve any wider enforcement rights being devolved to neighbouring proprietors. No doubt the superior wished to maintain the value of his unsold land and perhaps maintain the value of any feu duties for the future. Given the abolition of feudal tenure this perspective no longer exists. We would conceive however that it is arguable that should third party proprietors now have enforcement rights under s53, not contemplated prior to the 2003 Act, there may be an implied statutory purpose for the conditions to benefit those third parties.

[42] Turning to factor (a) we think the immediate neighbourhood of the property is the row of villas between Adelaide Street and George Street. To the west of the subjects the villa 74-78 East King Street has been internally partitioned into three dwellings and the garden has also been partitioned. The villa No. 72 has also been partitioned. To the east a bungalow has been constructed on land pertaining (or partly pertaining) to No. 84 which has a 1950s/1960s design which has also had a change of use to a veterinary surgery. We do not think these changes have made much difference to the general appearance of the area, although there are more households and potentially more activity than originally contemplated. Taking the wider neighbourhood to include the properties surrounding the north side of the park, the character is more eclectic. A number of properties to the east are Victorian but to the northwest there is a row of bungalows probably constructed in about the 1930s, and to the northeast there is a further row of houses of more recent design. So from the wider perspective there have been significant changes in the character of the neighbourhood.

[43] In the context of the present proposal the benefit (b) to No. 82 is the fact that the condition would prevent the erection of an adjacent single storey house. The main outlook for No. 82 is northwards across the park which would be unaffected. There are three ground floor west facing windows on the extension, two of which are very small. The third has its view mainly occluded by the existing boundary stone wall a few feet away. There are two west facing upstairs windows, one of which is in a bathroom and is frosted. The other is a bedroom which presently has views west to the No. 80 property and further north/north west to the town of Helensburgh. The bedroom also has a window looking directly north across the park which would be unaffected. We estimate that the existing west view of the garden of No. 80 would be replaced by the roof of the new house. Much of this view presently comprises a parking area and an internal leylandii hedge. The further view beyond would be unaffected. There would be some impact upon the view west from the front garden. There would be activity associated with the new house which we understand would be sharing the access with the existing No. 80.

[44] We understood the applicant’s submissions to indicate that the design of the new house would be different in nature to the existing Victorian villas. The row of villas does not have a uniform design, although they do share a particular upper window design. It is the case that the new house will, as it were, fill a gap in the build line between No. 80 and No. 82, which is presently garden ground. It was submitted that this could risk an appearance of imbalance within the row which generally preserves the distance between the individual villas. This could impact upon the setting of No. 82. However, our site visit indicated that this risk can be overstated. When viewing the row from King’s Crescent, i.e. the north side of the park, the backdrop between No. 80 and No. 82 is the featureless and rather uninspiring rear wall of a dwelling to the south of the railway line. So we doubt the imposition of a single storey house in the gap with this backdrop is likely to have a material adverse effect upon the general streetscape or setting of No. 82 in particular.

[45] In terms of factor (c) the condition, if it were applicable, would impede the applicant’s proposed development. The area to be developed includes a parking area and a garden area. Taking the garden as a whole, i.e. on both sides of the villa, we do not think that it can be described in any objective sense as excessive in size. The large garden would no doubt suit other potential proprietors with a greater need for a garden. We are also sceptical whether the development will in fact add much value overall to No. 80. It will impinge on the house’s existing east facing windows – one of the ground floor windows is quite large – and require a shared access. So we would think that the enjoyment which the burden impedes in terms of development value is fairly limited.

[46] Turning to factor (e), the burden was created was over 150 years ago. Given the length of time, i.e. over a hundred years, it would have been possible for the applicant to serve a termination notice under section 20 of the 2003 Act, assuming the burdens were enforceable. However, had the burdens been enforceable we would have taken the view that they are still to an extent relevant from an amenity perspective.

[47] In terms of factor (h) there is planning consent in principle for the development, thus demonstrating that the proposal is acceptable from the perspective of the public interest.

[48] Drawing the threads together, we conclude there would only be minor impact upon No. 82, since the proposal is limited to a single storey dwelling in terms of the planning permission. The enjoyment of the burdened property is being impeded, albeit to a modest degree. Given the balance of the factors we have mentioned, namely the age and relevance of the burdens, but also the local changes in the area and existence of the planning permission, by a narrow margin we would have been minded to allow a title variation so as to permit the development of the single storey house. Given the implied purpose of the conditions, and their continuing relevance, we would not have been prepared to discharge the burdens outright on the basis of the information before us, on account of potential amenity issues a larger development could involve. As it transpires however, this view is unnecessary for our decision.

Decision

[49] We determine that the title conditions in issue pertaining to 80 East King Street, Helensburgh are not enforceable. There is no benefited property for the purpose of the title conditions.

Annex 1 – Title plan


Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 16 January 2019

Neil M Tainsh – Clerk to the Tribunal