Post the Covid-19 pandemic, we have seen an increasing number of enquiries from clients wishing to vary or discharge conditions in their title deeds, which may prevent them using their property in the way they would like, for example, by building an extension or operating a business from it. The case of Inspire Scotland CC Ltd v Wilson and others is a recent example of the weight the Lands Tribunal for Scotland gives to each of the factors it can take into consideration when presented with an application to vary or discharge such conditions.
Inspire Scotland CC Ltd sought to vary the title conditions of a three-bedroomed house they had purchased, so they could use it as a care facility for up to three young people and children. The title conditions only allowed it to be used as a “private dwellinghouse for the accommodation of one family only”.
Inspire’s application was brought under s90(1)(a) of the Title Conditions (Scotland) Act 2003 (“the Act”) and the owners of the neighbouring properties, who benefited from the title condition, objected to the application. Section 100 of the Act sets out ten factors that the Tribunal is entitled to consider in determining whether or not it is reasonable to vary or discharge a title condition. The Tribunal considered a number of these in Inspire’s case, with varying degrees of weight placed on each.
The factors in dispute
The neighbours argued that the potential increase in anti-social behaviour and the increase in traffic as a result of carers arriving at and leaving the property would impede the enjoyment of their own properties. They also argued that the benefit of the title condition was to ensure they were not affected by anti-social behaviour, unknown occupants and increased traffic. Inspire submitted that there would be no more traffic than if a large family with multiple cars lived in the property, and the perceived risk of anti-social behaviour was low. The home would be supervised by the Care Inspectorate, who had robust powers to intervene and prevent any detriment to the neighbours.
The focus of Inspire’s argument was really that it was in the public interest that the title condition be varied. Public interest is not specifically stated as a factor in Section 100 of the Act, but Inspire relied on Section 100(j) which allows the Tribunal to take into account any other factor which it considers to be material. There is a statutory obligation for local authorities to provide children with suitable care, which Inspire said the local authority would be prevented from exercising if the application were not allowed. If housing, such as what Inspire had proposed, was not available, the children would go on living in unsuitable circumstances at a detriment to their welfare. It was crucial that the care provided to the children was as close to a normal family setup as possible. The title conditions were, in Inspire’s view, materially prejudicial to the public interest and would prevent adequate care being provided to children in need.
The Tribunal allowed the application conditional upon two extra parking spaces being created by Inspire in the front garden of the property. It was clear, however, that the Tribunal did not find the application easy to determine.
It accepted that the neighbourhood remained “residential at heart”, and the purpose of the title condition was to preserve amenity for the families occupying the properties benefiting from the restriction on use. This purpose, the Tribunal said, remained. Whilst the perceived risk of anti-social behaviour had in the Tribunal’s view been overstated, the risk could not be totally excluded, which amounted to a potential loss of amenity. These factors had to be weighed against the public interest in providing care to children and young persons in as normal as possible a home setting which the Tribunal accepted would be thwarted without a variation in the title conditions. Significant weight was given to this public interest in reaching its decision.
Factors such as the length of time which had passed since the title condition was created, the extent to which the title condition impedes enjoyment of Inspire’s property and the fact Inspire had planning permission for their proposed use, were, in the circumstances of this particular case, given little weight by the Tribunal.
Even though public interest is not specifically stated as a factor the Tribunal can consider, the Tribunal was willing to consider it in this case as a factor it considers to be material in terms of Section 100(j).
Each case will of course turn on its own facts and circumstances and there may be different situations where public interest is not a factor the Tribunal considers material. Differing degrees of weight are placed on each of the factors in Section 100 and it is necessary to consider each factor with reference to the circumstances of the case.
Article co-authored by Stephanie Hepburn, Partner, Dispute Resolution and Litigation team and Chloe Imrie, Trainee, Dispute Resolution and Litigation