Claire Maguire

The real burden bound owners in a disposition from 1882 “not to erect any buildings whatever upon said steading of ground hereby disponed and the same shall remain unbuilt upon in all time coming”.

Benefited proprietors at 1 Doune Gardens opposed the discharge of the burden, which would have ultimately prevented their use of the “pleasure ground”, upon which the applicants sought to build a house.

The tribunal stated in its judgment that the integrity of the title conditions was a “determining issue” in rejecting the application.

It stated: “The single house which would be created has to be balanced against the fact that it would displace three households from using the garden and which, to some extent, would impair their outlook.

“But in short, we are not persuaded that the subjects do not continue to have a long term future as a shared garden as the title conditions envisage. We regard the continuing integrity of the title conditions as a determining issue and accordingly do not think it would be reasonable to discharge them.”

Claire Maguire, consultant solicitor at Flexlaw, who represented the three property owners who opposed the application, told Scottish Legal News: “This judgment is important in that it is a victory for the preservation of private servitude rights but more than that, it demonstrates that landowners ought not to assume an ‘old’ burden will be irrelevant in this modern age and thus warrant discharge by the tribunal.”

Dr Andrew Steven, senior lecturer in law at Edinburgh Law School, told SLN: “This case underlines that even where planning permission has been granted title conditions can prevent a development, including conditions imposed a long time ago.

“It is also important for its discussion of whether Scots law recognises a servitude of use of garden ground, but the tribunal did not reach a definite conclusion on this.”