CHRISTIE & CHRISTIE v (1) CARROLL & SMITH (2) MORRIS & MORRIS (3) ABBOTT and (4) BRYDEN

We acted for Respondents (1)-(3) in a successfull opposition to an Application made by Mr. and Mrs. Christie to have a real burden in their title discharged by the Land Tribunal. Respondent (4) did not appear at the hearing.

Mr. and Mrs. Christie (the Applicants) bought a piece of garden ground in Glasgow’s sought-after West End; in an area that had been coined “the green gateway”. They sought to build a house on it but their title contained a prohibition on erecting any buildings and required it to be formed into a “pleasure ground”. The burden originated in an 1882 Disposition and the garden ground had remained relatively untouched since then, other than maintenance and gardening work being carried out by our clients.

Our clients live in 3 households of fine Victorian sandstone townhouses which overlook the pleasure ground. They have been enjoying the use of the garden for many years, dating back to around 1999. They have tended it, planted trees and shrubs and enjoyed it over the years.

The Applicants bought the garden in 2016 and instructed an architect to design a partially subterranean house, “built-in” to the slope of the land – it came to be known as “the Hobbit house” locally. Planning permission was granted. There were 135 objections put in against this build and many locals, including “Friends of Glasgow West” campaigned to stop this but were unsuccessful.

The case before the Tribunal called over 2 days with 2 judges presiding. The Applicant’s architect and Mr. Christie gave evidence at the hearing. Our clients Mr. Carroll, Mr. Morris and Ms. Abbott all gave evidence with the support of their neighbour Ms. Mackenzie.

Counsel for the Applicants argued that it was odd that the 3 households had never been given any ownership rights, that the burden itself was not clear enough to provide any right of use to the 3 households and that any right to use can only been seen as a positive servitude or ancillary burden and as such, was repugnant to ownership (and thus would be seen as merely personal rights, not binding successors to the original Disposition). Counsel for the Applicants also argued there was no recognisable servitude right of use to a pleasure garden.

The Tribunal referred to Regency Villas Title Ltd v Diamond Resorts (Europe) Ltd [2018] UKSC 57 – an English case where it was held that there could be an easement over adjacent land for recreational or sporting rights. The creation of an easement for the enjoyment of pleasure ground had been confirmed in the case In Re Ellenborough Park [1956] Ch 131.

Counsel for our clients, Neil Kinnear Advocate, argued that the evidence of our clients ought to be preferred; the garden had been devotedly looked after, the Applicants had been aware of the burden before settling the purchase of the garden, the Applicants were aware of the burden, title and planning issues and had taken a calculated risk. Counsel submitted the Tribunal were dealing with a real burden but that the “use” element of it had been transposed into a positive servitude by virtue of section 81 of the Title Conditions ( Scotland) Act 2003 albeit there may be no distinction between a servitude and a burden of use. Counsel submitted the purpose of the condition was important, a purpose which had remained in place since it was created in 1882, with very little change in circumstances since then.

It was emphasised that although planning permission was granted, planning departments do not consider private rights such as the right to use the pleasure ground in this case. The discharge of the real burden would have the practical effect of depriving the 3 other households of their right of use of the garden.

IT WAS HELD - that the original purpose in providing and protecting amenity for the 3 households had withstood very limited changes in circumstances since 1882 – this purpose remained relevant and valid. The Tribunal found that the single house that would be created has to be balanced against the fact that it would displace 3 households from using the garden and which would also impair their outlook.

In summary, the ground has a long term future as a shared garden just as the titles envisaged and so discharge was refused.

Conclusion

So what does this mean for cases going forward? A title condition which, if discharged, would have the practical effect of depriving private proprietors of their legal rights, is not one that may be discharged in Scotland. Factors upon which this conclusion was reached were the purpose of the condition, its stamina over the years since 1882 and the effect it would have on our clients by displacing them from being able to use the garden.

Each case turns on its own set of circumstances but this decision should serve as a warning to any parties who think it will be all too easy to discharge a title condition, a trap that may have been triggered here.

Claire Maguire Flexlaw Consultant Solicitor