Residential property: Planning permission does not overwrite the title deeds

In modern residential developments, the title deeds are of primary importance. If homeowners want to make changes that are prohibited by the deeds, their neighbours will be able to object, even if planning permission has been granted. This was illustrated in the recent case of Malcolm and others v Paton.

The background to the case

The Defenders, Mr and Mrs Paton, lived in a property in a corner plot within a Cala development. They wanted to build a wall, incorporating an electric gate, along the front boundary of their property and curving around to the side. The proposed wall was around 0.9 metres high, and the gate around 1.2 metres. North Lanarkshire Council granted planning permission for the project.

However, the Patons had not checked their title deeds thoroughly. The property was subject to a Deed of Real Burdens containing Rule 9.1, which prohibited additional boundary walls or fences without “Neighbour Consent”, defined as the written consent of all proprietors within a 30-metre radius of the plot.

No such consent was sought by the Defenders. The occupants of three neighbouring properties (six people in total) objected to the proposed works, arguing that the wall would radically alter the open-plan character of the estate and diminish their enjoyment of their properties. The case was heard in the Sheriff Court.

The legal arguments

The Pursuers stated that they had purchased their properties on the basis of strict title conditions that were designed to preserve the open-plan layout of the development. The prohibition on front boundary walls was a specific condition contained within their title deeds and had been included in their sales packs. As one of them succinctly put it, “We bought it open plan, not a gated community.” They argued that the proposed wall would significantly alter the appearance of the street, reduce communal enjoyment, and encourage similar boundary enclosures by other owners.

The Defenders relied on privacy and security concerns, including preventing access shortcuts, dog fouling and misuse of their driveway. They also pointed to the existence of walls, hedges and other boundary features elsewhere within the wider estate. Importantly, they argued that statutory enforcement should only apply where a breach gives rise to “material detriment”, and that the neighbour consent clause did not permit that threshold to be bypassed.

It was a key issue for the Sheriff whether the Pursuers had an interest, under section 8(3)(a) of the Title Conditions (Scotland) Act 2003, to enforce Rule 9.1 of the Deed. Specifically, would the erection of the wall and gate result in “material detriment” to the value or enjoyment of the Pursuers’ properties?

The court also considered how the neighbour consent provision in Rule 9.1 interacted with the statutory test for material detriment.

The decision

The Sheriff found for the Pursuers and granted a final interdict prohibiting the erection of the wall and gate, binding on the Defenders and their successors in title for so long as Rule 9.1 remained in force.

The judgment found that the Defenders’ reasons for seeking the works, while valid and understandable, were irrelevant to the issue before the Court – namely, the Pursuers’ enjoyment of their properties. Concerns regarding loss of value were described as vague and tentative, and no finding was made on that point.

In considering interest to enforce, the Sheriff applied section 8 of the 2003 Act, and drew on established authority, including Barker v Lewis 2008 SLT (Sh Ct) 17 and Franklin v Lawson 2013 SLT (Lands Tr) 81. Material detriment was defined as something “significant” or “of consequence”, and more than fanciful or insignificant.

Certain concerns advanced by the Pursuers – such as traffic and visibility issues – were largely regarded as fanciful or unsupported by evidence. The Sheriff observed that accepting such arguments would risk diluting a statutory threshold which, while relatively low, remains meaningful.

However, he accepted that the proposed wall would have a significant effect on the appearance of the street and the open-plan character of the development. That impact was sufficient to amount to material detriment to the Pursuers’ enjoyment of their properties.

What does this mean for owners and developers?

This case highlights that title conditions continue to play a central role in regulating development within residential estates. If the deeds require neighbour approval or tribunal clearance, this must still be obtained even if planning permission has been granted.

For owners, developers and advisers alike, the message is clear: before beginning any works, thoroughly review the title deeds to confirm what constraints or consent requirements they impose. If you feel that these restrictions are unduly onerous, you should make an application to the Lands Tribunal – not proceed unilaterally.

One final point: as always, greater clarity and certainty when drafting title deeds reduces the risk of disputes further down the line.

This article was co-authored by Trainee Mia Ibrahim.

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