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

PART 7 Powers of the Lands Tribunal for Scotland

Powers of the Lands Tribunal

22.—(1) Subject to articles 28 and 30 and to paragraphs (3) and (4), the Lands Tribunal may by order, on the application of a member–

(a) discharge or vary a rule of the Development Management Scheme (other than a rule in Part 2 of the Development Management Scheme) in relation to a unit owned by that member;

(b) preserve, as mentioned in article 9(3), a rule in respect of which intimation of a proposal to register a deed of variation has been given under article 9(1); or

(c) determine any question as to the validity, applicability or enforceability of a rule of the Development Management Scheme or as to how it is to be construed.

(2) Where the Lands Tribunal refuse an application under paragraph (1)(b), they are to vary or discharge the rule accordingly.

(3) It is not competent to make an application under paragraph (1)(b)–

(a) after the expiry of the period mentioned in article 9(3), except with the consent of the association; or

(b) after there has been, in relation to the proposal, endorsement under article 9(4).

(4) Variation which would impose a new obligation or would result in the owner of a unit becoming entitled to enforce an obligation shall not be competent on an application under paragraph (1)(a) unless the owner of the unit subject, or to be made subject, to the obligation consents.

(5) Subject to paragraph (7), an order discharging or varying a rule may–

(a) where made under paragraph (1)(a) direct the applicant; or

(b) where made by virtue of the refusal of an application under paragraph (1)(b), direct the association,

to pay to any person who was entitled to enforce the rule, such sum as the Lands Tribunal may think it just to award under one, but not both, of the heads mentioned in paragraph (6).

(6) The heads are–

(a) a sum to compensate for any substantial loss or disadvantage suffered by the member, as owner of a unit, in consequence of the discharge or variation;

(b) a sum to make up for any effect which the rule produced, at the time when it was created, in reducing the consideration then paid or made payable for the burdened unit.

(7) A direction under paragraph (5) shall be made only if the person directed consents.

(8) Subject to paragraph (9), an order discharging or varying a rule may impose on a unit a new rule or vary a rule extant at the time the order is made.

(9) An imposition under paragraph (8) shall be made only if the owner of the unit consents.

Special provision as to variation or discharge of rules

23.—(1) Without prejudice to article 22(1)(a), an application may be made to the Lands Tribunal under this article by owners of at least one quarter of the units for the variation or discharge of a rule (other than a rule in Part 2 of the Development Management Scheme) as it affects, or as the case may be would affect, all or some of the units forming the development.

(2) In the case of an application made by owners of some (but not all) of the units forming the development, the units affected need not be the units which they own.

(3) Paragraphs (5) to (7) of article 22 apply in relation to an order made by virtue of paragraph (1) varying or discharging a rule as they apply to an order under article 22(1)(a).

Notification of application

24.—(1) The Lands Tribunal must, on receipt of an application under–

(a) article 22(1)(a) or 23(1), give notice of that application to the association and the members;

(b) article 22(1)(b) or (c), give such notice to the association,

and subject to paragraph (2) are to do so by sending the notice.

(2) If the person to whom the notice is to be given cannot, by reasonable inquiry, be identified or found, notice under paragraph (1) may be given by advertisement, or by such other method as the Lands Tribunal think fit.

(3) The Lands Tribunal may also give notice of the application, by such means as they think fit, to any other person.

Content of notice

25.—(1) The Lands Tribunal must in any notice given by them under article 24(1)–

(a) summarise or reproduce the application;

(b) set a date (being a date no earlier than twenty one days after the notice is given) by which representations to them as respects the application may be made;

(c) state the fee which must accompany any such representations; and

(d) state that if the application is not opposed it may be granted without further inquiry.

(2) Any notice given (other than by advertisement) in respect of an application under article 22(1)(a) or article 23 must also set out the name and address of every person to whom the notice is being sent.

Persons entitled to make representations

26.  The persons entitled to make representations as respects an application under article 22 or 23 are–

(a) the association; and

(b) any member.

Representations

27.—(1) Representations made by any person to the Lands Tribunal as respects an application under article 22 or 23 must be in writing and must comprise a statement of the facts and contentions upon which the person proposes to rely.

(2) Representations are made when they are received by the Lands Tribunal with the requisite fee; and a person sending such representations must forthwith send a copy of them to the applicant.

(3) Notwithstanding article 25(1)(b), the Lands Tribunal may if they think fit accept representations made after the date set under that sub paragraph.

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.

Expenses

29.  The Lands Tribunal may, in determining an application made under article 22 or 23, make such order as to expenses as they think fit but are to have regard, in particular, to the extent to which the application, or any opposition to the application, is successful.

Taking effect of orders of Lands Tribunal etc.

30.—(1) Subject to paragraphs (2) to (4), an order made by the Lands Tribunal in respect of an application under article 22 or article 23 takes effect on the occurrence of whichever of the following events last occurs after the Lands Tribunal has made the order–

(a) the expiry of the period of 21 days after the date when the order was made by the Lands Tribunal;

(b) the disposal by the Court of Session of a case stated by the Lands Tribunal on appeal to that court or, if there is an appeal to the House of Lords, the disposal of the case by the House of Lords;

(c) the abandonment or other termination of the proceedings on a case so stated without a decision having been given;

(d) the abandonment or other termination of an appeal against the decision of the Court of Session on a case so stated or the expiry of the time for bringing any such appeal without it having been brought; or

(e) the variation by the Lands Tribunal of the order in compliance with any directions given by the Court of Session or the House of Lords in proceedings relating to such a case.

(2) Where the application is unopposed or all persons who have opposed or made representations in respect of the application have informed the Lands Tribunal that they consent to the order taking effect immediately, and it is so certified in the order, such order takes effect on the date on which it is made by the Lands Tribunal.

(3) Where a rule is varied or discharged subject to the payment of any compensation awarded by the Lands Tribunal, the order of the Lands Tribunal shall not, so far as it affects such variation or discharge, take effect until the Lands Tribunal has endorsed the order to the effect either that the compensation has been paid or that all persons to whom any compensation has been awarded but who have not received payment of it have agreed to the order taking effect.

(4) The Lands Tribunal may direct that the compensation must be paid or satisfied within a specified time and that, unless it is so paid or satisfied, the order shall be void on the expiration of the time so specified.

Registration of orders

31.—(1) An order under–

(a) article 22(1) granting an application under article 22(1)(a) or (b);

(b) article 22(1) on the refusal (wholly or partly as the case may be) of an application under article 22(1)(b); or

(c) article 23(1);

which has taken effect in accordance with article 30 may be registered against the unit of the development by any person who was a party to the application or who was, under article 26, entitled to make representations as respects the application; and on the order being so registered the rule to which it relates is preserved, discharged (wholly or partly) or varied according to the terms of the order.

(2) Any enforceability which the obligation in question has as a contractual obligation is unaffected by an order made under article 22(1) or article 23.