Sheriff Appeal Court allows appeal by homeowners against decision on enforceability of burden in housing development

About this case:

• Citation:
  [2026] SAC (Civ) 28
• Judgment:
  External link
• Court:
  Sheriff Appeal Court
• Judge:
  Sheriff Principal Catherine Dowdalls KC

Kevin and Marion Paton, who unsuccessfully defended an action raised by six of their neighbours, the Malcolms, the Heenans, and the Van Der Marels, argued that the respondents had failed to demonstrate sufficient interest to obtain an order for the enforcement of a real burden as set out in section 8 of the Title Conditions (Scotland) Act 2003. They argued that too much weight had been placed on the personal opinions of the respondents and thus no finding in fact existed capable of justifying his conclusions in law.

The appeal was heard by Sheriff Principal Kate Dowdalls KC with Appeal Sheriffs Wendy Sheehan and Ian Cruickshank, with Manson, advocate, appearing for the appellants and Boffey for the respondents.

Objective statutory test

The appellants were the owners of 18 Gadwall Grove in Motherwell with the respondents occupying neighbouring properties, all of which were located in a development designed by the housebuilder CALA. Each property was subject to a Deed of Real Burdens which provided that no additional boundary walls or similar structures could be erected except with “neighbour consent”, that term defined as the consent of all proprietors of plots within 30 metres of the relevant plot. On 1 November 2021, the appellants were granted planning permission to construct a front boundary wall and electric gate at their property, for which the respondents had not given their consent.

Following proof, the sheriff accepted that the appellants had valid reasons for wanting to erect the wall, but he also accepted that its erection would have a significant effect on the appearance of Gadwall Grove, noted to have a markedly open layout, and lead to other proprietors seeking to make similar alterations to their own properties. He further found that in the circumstances of the case, failure to comply with the burden would result in material detriment to the pursuers’ enjoyment of their own homes.

For the appellants it was submitted that the sheriff had impermissibly allowed irrelevant subjective considerations based on the respondents’ personal views to influence decisively the operation of what was an objective statutory test. On the sheriff’s approach, every single breach of a title condition would automatically become material because the very act of breach would upset the expectation of a prospective proprietor that all the rules would always be adhered to.

The respondents submitted that the sheriff correctly considered the test to be a very low bar. Their evidence was that, individually and collectively, they would suffer a material detriment to their enjoyment of their properties. The sheriff did not err in his assessment of that evidence, and he was correct to have regard to the respondents’ evidence in assessing material detriment.

Personal detriment

Delivering the opinion of the court, Sheriff Principal Dowdalls said of the test to establish interest: “To establish interest, it was necessary for [the respondents] to show, and for the sheriff to find, that the appellants’ failure to comply with the real burden in the circumstances of this case resulted, or would result, in material detriment to the value or enjoyment of the respondents’ ownership of, or right in, their respective properties. No issue was raised and no findings in fact were made as to the impact, if any, on the resultant value of the respondents’ properties in the event the appellants were permitted to erect the wall. Therefore the only question for determination was whether the detriment claimed by the respondents was material to their enjoyment of each of the benefited properties.”

She added: “The question for us therefore is whether the sheriff’s conclusion that the respondents’ feeling that the rules are of no effect is sufficient in the circumstances of the case, looked at objectively, to amount to material detriment such that the respondents have sufficient interest to obtain an order for the enforcement of the real burden in terms of the statutory scheme set out in section 8 of the 2003 Act. In order to answer that question, we must consider, first, what amounts to detriment as provided for in section 8(3)(a) of the 2003 Act and, secondly, how materiality is to be assessed. Then we must assess whether the sheriff has identified detriment to the respondents sufficiently material to qualify as an interest to enforce the burden.”

Considering how the sheriff approached detriment, the Sheriff Principal said: “The sheriff concluded that the loss by the respondents of the certainty provided by the rules in the Deed of Real Burdens and the feeling that the regime of the rules that they bought into is of no effect will detract from their enjoyment of their property. That, he said, amounts to material detriment to their enjoyment of their ownership of their homes. That cannot be correct. The reference to the respondents’ feelings, which is the only explanation for his conclusion as to detriment, is plainly not a reference to the benefited properties as properties. Rather, it is a reference to the personal detriment of the respondents.”

She concluded: “The respondents’ feelings about the consequences of the appellants’ failure to adhere to the Rules provide no objective basis upon which to judge the question of materiality. It follows from the above that in the absence of material detriment, the respondents had no interest and therefore were not entitled to the protective remedy of interdict. The sheriff in his judgment does not engage in any analysis of the question of necessity of the remedy of interdict in the circumstances of the case. We do not require to engage in that analysis as there is no interest to protect.”

The appeal was therefore allowed, with the appellants consequently assoilzied from the craves of the respondents’ initial writ.