John Stirling, partner and property litigation specialist at Gillespie Macandrew, explores community burdens and considers lessons from one recent decision
DEVELOPERS know that humans do not always share space willingly or easily. Modern developments therefore have detailed rules about plot density, use of common gardens and the like. They will almost always be in a registered Deed of Conditions. Deeds of Conditions impose new ‘real burdens’. When mutual within a development, they are ‘community burdens’. Community burdens are enforceable by neighbours provided they have a sufficient interest to enforce them. Understanding when they can be varied or discharged is therefore important for anyone seeking to alter a property or intensify its use.
If a developer wishes to break the existing rules and cannot obtain the neighbours’ consent, they must apply to the Lands Tribunal for a variation or discharge of the real burden. A recent decision of the Tribunal gives unusually clear guidance on what will move them.
Smith & Another v Burden & Others concerns the Craigie Hill development by Leuchars. It was part of a larger scheme to build houses, a golf club and a hotel in a rural setting. One 0.9-acre plot, at the end of a cul-de-sac, was left unbuilt and was acquired by the development company’s director. The applicants, two sisters, had inherited it from their father, the company’s director. By June 2025, both the development and the Deed of Conditions were 24 years old.
The Deed of Conditions created community burdens for the development. One insisted on only one house per plot (the ‘Condition’).
The sisters sought to build four on their single plot. They argued that there was little demand for a house with such a big garden, three extra houses would have very limited impact on road traffic or safety and that, in any event, traffic concerns could be addressed in the planning process. They said the character of the development would be unchanged and that disruption would be no longer for three builds as one. The complaint that the change was to increase the value of the plot should be ignored for want of evidence.
The neighbours said that the subdivision would affect their amenity, the utilities and the traffic; they predicted a long period of disruption during the build. They said the Deed of Conditions was relatively recent and therefore still appropriate.
The Tribunal’s decision
The legislation lists several relevant factors. The Tribunal considered each. Had there been a change in circumstances since the Deed of Conditions? If so, did that amount to a change in the character of the neighbourhood? The Tribunal found neither. No plots had been subdivided and each remained occupied by a single detached house.
The Tribunal found that the object of the Condition was the protection of the amenity of the houses in the development. That was still valid.
There was benefit to the neighbours. The Condition preserved the character and amenity of a quiet, private, residential neighbourhood. The roads were narrow. If the Condition was varied traffic would likely increase, particularly in the small cul-de-sac feeding the site.
The Condition did impede enjoyment of the applicants’ property. The Tribunal accepted that varying the burden would increase the value of the plot. They noted that the plot was inherited from the person who had, in practical terms, imposed the condition (and for a reason). It was still possible to build one house on the plot. The Condition was not old as burdens go.
The Tribunal noted the absence of planning consent and that no compensation was offered to the neighbours. There wasn’t any other material consideration. They refused the application.
It’s a story with almost everything at a human level. The decision is important because the Tribunal emphasised that assessment of the statutory factors was not a mechanical process. They used their own expertise to make a value judgement. In this case, the relevant factors all pointed away from varying or discharging the burden, and the application was refused.
Practical lessons
The developer’s perspective: when considering the way forward, the owner of a property that is subject to community burdens which stymie a proposed development, should start with what is likely cheapest. If those who may object can be identified, try to reach an agreement with them. Money that might otherwise be spent on legal fees may be better directed towards reaching a settlement.
If consent isn’t forthcoming, the process of obtaining planning permission, if needed, might address concerns and persuade your neighbours. Securing planning permission for a specific development can strengthen an application for variation or discharge by demonstrating that the development is more than a hypothetical possibility.
If similar development has already been permitted, or the character of the development has changed, the impact on your neighbours is modest, or reasonable compensation has been offered, then go to the Tribunal with confidence. If any variation is made conditional on payment, the developer doesn’t have to proceed. However, the option to proceed has been established and that package can be sold to another developer who might wish to progress.
The neighbour’s perspective: If you are a neighbour, and wish to oppose the proposed development, object when it is intimated to you and ensure you can prove you did so. If a formal notice of a Lands Tribunal application is received, respond as requested. If an application is made to the Tribunal, objectors should consider acting together. A chorus is hard to ignore. How important is the burden to the amenity both generally and to your house? Is there still a point to the burden? If there is, object firmly, you are acting reasonably. You need little more than object and explain the adverse impact on your property. The points are straightforward to make.
Conclusion
The Craigie Hill decision shows the power of an expert and perceptive tribunal armed with a site visit over technical points and what ifs. A good argument from either side will make itself heard in the Lands Tribunal.
