Real Burdens and Planning Law

Prior to the coming into force of the Title Conditions (Scotland) Act 2003 (“the 2003 Act”) on 28 November 2004, there was little authority on the subject of interest to enforce and a tendency to consider such matters in accordance with the praedial rule. While the praedial rule looks in the abstract at whether a burden is for the benefit of an identified property and at the nature of the obligation, the rule on interest to enforce relates to whether an individual with ownership of a specific property can enforce in respect of a specific contravention of a real burden. The general rule on interest to enforce can now be found in Section 8 (3) of the 2003 Act. It is provided in Section 8 (3) that interest to enforce will exist if “in the circumstances of any case, failure to comply with the real burden is resulting in, or will result in, material detriment to the value or enjoyment of the person’s ownership of, or right in, the benefited property.”


As anticipated by a number of commentators on the provisions of the 2003 Act, the interpretation of the phrase “material detriment” has provoked debate both in the Courts and in the Lands Tribunal for Scotland. See, most recently the article entitled “Real burdens revived” and the cases referred to therein in the November 2011 Issue of the Journal of the Law Society of Scotland.  The most recent case is Kettlewell v Turning Point Scotland 2011 SLT (Sh Ct) 143 which has been described as having redressed the balance somewhat from what some described as the extreme position in the case of Barker v Lewis 2207 SLT (Sh Ct) 48; and 2008 SLT (Sh Ct) 17.


In Kettlwell, the pursuers were a group of proprietors of 20 dwelling houses in a  quiet cul-de-sac in a residential housing estate. A common scheme of real burdens was imposed in the title to the development so as to seek to protect the residential quality of the development. The common scheme included a burden to the effect that each dwelling house was only to be used as a “private dwelling house for occupation by one family only and for no other purpose whatsoever.” Turning Point Scotland, a charity working to prevent social exclusion and to provide care in the community, acquired one of the dwelling houses with a view to obtaining planning permission in respect of its conversion into a care home for up to six unrelated individuals. The pursuers on becoming aware of this proposal decided to try to prevent Turning Point Scotland from changing the use of the dwelling house on the basis that their plans were in breach of the real burden restricting use to that of a private dwelling house for one family only.


The first point to be examined by the Court was whether or not the pursuers had a title to enforce.  It was accepted that a valid title to enforce did exist by virtue of inter alia the existence of the common scheme of real burdens. That then meant that the issue of whether or not they had an interest to enforce required to be examined and, in particular, whether the failure to comply with the real burden would result in material detriment to the value or enjoyment of the pursuers’ ownership of the benefited properties. This was, as it was always intended to be, a factual question which depended on the particular circumstances of the case. In Kettlewell, the Court considered whether material detriment could be shown either in relation to (a) value or (b) enjoyment of the pursuers’ properties.


Detriment to the enjoyment of the neighbouring properties was considered under three heads: (a) behaviour of the residents of Turning Point’s dwelling house; (b) increased traffic around the house; and (c) parking difficulties. Of the three heads and on the particular facts of this case, greater weight was given to parking and traffic issues.  In addition, as one would expect , the issue of material detriment to the value of the pursuers’ property was addressed through evidence provided by valuation surveyors. Comparable evidence demonstrated that an average diminution in value of 10% per dwelling house could be expected. The Court held that such a reduction in value was significant and found in favour of the pursuers.


It was always accepted that the provisions of the 2003 Act would require to be developed as a result of decided case law. Kettlewell is the latest case to help conveyancers establish some precedents as to what may and may not be deemed to be an acceptable level of interest to enforce. As stated above however, each case must be considered in light of its own facts and circumstances and questions of materiality must be assessed against the whole factual matrix of each particular case. When considering the purchase of a property by a third party or the development of a  property by the owner for a purpose other than that which is permitted in terms of that property’s title deeds it is important to recognise that questions of title and interest to enforce remain  significant issues to consider in addition to making an application to the local authority for planning permission for change of use. Indeed, it has always been thus.  As well as the consent of the Planning Authority, it may also be necessary to obtain formal waivers from benefited proprietors in order to restrict or remove the offending real burden. That, in turn, of course, leads to a consideration of who qualifies as a benefited proprietor and that is a question for another day.




Article by Scott Brymer, Solicitor, Brymer Legal Limited, Edinburgh
Published in Scottish Planning & Environmental Law - Issue 149 - Feb 2012