The Title Conditions (Scotland) Act 2003 (Development Management Scheme) Order 2009

Granting applications for discharge, variation or preservation of a rule

28.—(1) An application for the variation, discharge or preservation of a rule is to be granted by the Lands Tribunal only if they are satisfied, having regard to the factors set out in paragraph (2) that–

(a) except in the case of an application under article 22(1)(b), it is reasonable to grant the application; or

(b) in such a case, the variation or discharge in question–

(i) is not in the best interests of all the members (taken as a group); or

(ii) is unfairly prejudicial to one or more members.

(2) The factors mentioned in paragraph (1) are–

(a) any change in circumstances since the rule was created (including, without prejudice to that generality, any change in the character of the benefited unit or burdened unit or of the neighbourhood of the units);

(b) the extent to which the rule confers a benefit on a benefited unit;

(c) the extent to which the rule impedes enjoyment of the burdened unit;

(d) if the rule is an obligation to do something, how–

(i) practicable; or

(ii) costly,

it is to comply with the rule;

(e) the length of time which has elapsed since the rule was created;

(f) the purpose of the rule;

(g) whether in relation to the burdened unit there is the consent, or deemed consent of a planning authority, or consent of some other regulatory authority, for a use which the rule prevents;

(h) whether the owner of the burdened unit is willing to pay compensation;

(i) any other factor which the Lands Tribunal consider to be material.