The Title Conditions (Scotland) Act 2003 (Development Management Scheme) Order 2009
| Jurisdiction | UK Non-devolved |
| Citation | SI 2009/729 |
2009 No. 729 (S. 2)
CONSTITUTIONAL LAW
DEVOLUTION, SCOTLAND
TITLE CONDITIONS, SCOTLAND
The Title Conditions (Scotland) Act 2003 (Development Management Scheme) Order 2009
Made 18th March 2009
Laid before Parliament 24th March 2009
Coming into force 1st June 2009
The Secretary of State makes the following Order in exercise of the powers conferred by sections 104, 112(1) and 113(2), (3) and (7) of the Scotland Act 19981:
PART 1
Introductory
Citation, commencement and extent
1.—(1) This Order may be cited as the Title Conditions (Scotland) Act 2003 (Development Management Scheme) Order 2009 and comes into force on 1st June 2009.
(2) This Order extends only to Scotland.
Interpretation
2. In this Order–
“the Act” means the Title Conditions (Scotland) Act 20032;
“association” means the owners' association of the development established under article 4;
“benefited unit” means a unit advantaged by a rule;
“burdened unit” means a unit constrained by a rule;
“deed of application” means a deed granted pursuant to section 71 of the Act;
“deed of variation” means a deed of variation or discharge granted pursuant to article 7 or 8;
“the development” means the land to which the Development Management Scheme is applied as described in the deed of application;
“the Development Management Scheme” has the meaning given in article 3;
“Lands Tribunal” means the Lands Tribunal for Scotland;
“manager” means the person appointed to be manager of the association;
“member” means a member of the association in accordance with rule 2.3 of the Development Management Scheme;
“owner” has the meaning given in article 18;
“registering” in relation to any document, means registering an interest in land or information relating to an interest in land (being an interest or information for which that document provides) in the Land Register of Scotland or, as the case may be, recording in the Register of Sasines (cognate expressions being construed accordingly);
“road” has the meaning given by section 151(1) of the Roads (Scotland) Act 19843;
“rule” means a rule of the Development Management Scheme;
“scheme property” has the meaning given in article 20;
“send” shall be construed in accordance with article 19 (cognate expressions being construed accordingly);
“service charge” has the meaning given in the Development Management Scheme;
“tenement” and “tenement building” have the meanings given in section 26 of the Tenements (Scotland) Act 20044;
“unit” means an individual property forming the development as described in the deed of application for that development; and
“variation” includes the imposition of a new obligation (cognate expressions being construed accordingly).
PART 2
The Development Management Scheme
The Development Management Scheme
3. The Development Management Scheme is the scheme of rules for the management of land set out in Schedule 1 to this Order or, in relation to a particular development, that scheme as applied to the development with such variations as may be specified by the deed of application and any other variations as may subsequently be made to that scheme.
Owners' association
4.—(1) The owners' association for the development is established on the date on which the Development Management Scheme applied to that development takes effect under section 71(1) of the Act in respect of that development (or part of that development).
(2) The association is, on being established, a body corporate.
Application of provisions of the Act to rules of Scheme
5.—(1) Sections 2, 3, 5, 10, 11, 13, 14, 16, 18, 59 to 61, 67, 70 and 105 of the Act shall apply, as modified by section 72 of the Act, in relation to the rules of the Development Management Scheme (other than the rules set out in Part 2 of Schedule 1 to this Order) as those sections apply in relation to community burdens.
(2) Sections 68, 69, 98, 100 and 104 of the Act shall not apply in relation to the rules of the Development Management Scheme.
(3) In this article and subject to paragraph (4), “community burdens” has the same meaning as in the Act.
(4) For the purposes of the application of the sections of the Act mentioned in paragraph (1) “unit” has the meaning given in article 2 of this Order.
PART 3
Variation of the Development Management Scheme
Variation of Scheme in deed of application
6.—(1) A deed of application may, subject to paragraph (2), apply the Development Management Scheme to any land with such variations as may be specified in the deed of application.
(2) The rules in Part 2 of Schedule 1 to this Order may not be varied in a deed of application other than in accordance with paragraph (3).
(3) The deed of application must specify (as required in the instructions in rule 2.2) the name of the association, being a name which either ends with the words “Owners' Association” or begins with those words preceded by the definite article.
Variation of Scheme with agreement of owners of affected and adjacent units
7.—(1) A rule of the Development Management Scheme (other than any rule in Part 2 of Schedule 1 to this Order) may be varied, or discharged, in relation to a unit by registering against that unit (“the affected unit”) a deed of variation granted–
(a)
(a) by the association, in accordance with the Development Management Scheme;
(b)
(b) by the owner of the affected unit; and
(c)
(c) by the owner of at least one adjacent unit (if any) in relation to the affected unit.
(2) For the purposes of paragraph (1), “adjacent unit” means, in relation to an affected unit, any unit which is at some point within four metres of the affected unit.
(3) The reference in paragraph (2) to an adjacent unit being within four metres of the affected unit is a reference to distance along a horizontal plane, disregarding–
(a)
(a) the width of any intervening road if of less than twenty metres; and
(b)
(b) any pertinent of either unit.
Variation of Scheme generally by owners' association
8. A rule of the Development Management Scheme (other than any rule in Part 2 of Schedule 1 to this Order) may, subject to article 9, be varied, or discharged, in relation to a unit by registering against that unit a deed of variation granted by the association in accordance with the Development Management Scheme.
Intimation of variation under article 8
9.—(1) Where a deed of variation is granted under article 8, a proposal to register that deed must be intimated by the association to the members.
(2) Intimation under paragraph (1) is to be given by sending a copy of the deed, together with–
(a)
(a) a notice in, or as near as may be in, the form set out in Schedule 2 to this Order; and
(b)
(b) the note which immediately follows that form in that Schedule.
(3) A member may, during the period of eight weeks beginning with the date on which intimation of the proposal to register the deed is given to that member under paragraph (1), apply under article 22(1)(b) to the Lands Tribunal for preservation, unvaried, of the Development Management Scheme or a rule thereof.
(4) A deed of variation granted under article 8 does not, on registration, vary or discharge a rule of the Development Management Scheme unless, after the expiry of the period of eight weeks beginning with the latest date on which intimation is given under paragraph (1), there is endorsed on it (or on an annexation to it referred to in an endorsement on it and identified, on the face of the annexation, as being the annexation so referred to) a certificate executed by a member of the Lands Tribunal, or by their clerk, to the effect that no application in relation to the proposal to register the deed has been received under article 22(1)(b) or that any such application which has been received–
(a)
(a) has been withdrawn; or
(b)
(b) relates to one or more but not to all of the rules of the Development Management Scheme to be varied or discharged by the deed (any rule to which it relates being described in the certificate),
and where more than one such application has been received the certificate must relate to both or (as the case may be) all applications.
(5) Registration of a deed of variation granted under article 8 does not vary or discharge any rule described in a certificate by virtue of paragraph (4)(b).
(6) Before a deed of variation granted under article 8 is submitted for registration a certificate must be endorsed on the deed by the association confirming–
(a)
(a) that paragraphs (1) and (2) have been complied with; and
(b)
(b) as to the date on which the period mentioned in paragraph (4) expires.
Enforcement of rules by members
10.—(1) Notwithstanding article 6(2), 7(1) or 8, a deed of application or a deed of variation may confer a right to enforce all or some of the rules of the Development Management Scheme on a member and the right to enforce may be conferred in respect of specified units or all the units in the development.
(2) Where a deed of application or a deed of variation confers a right to enforce a rule on a member, the member is entitled to enforce the rule only if the member has interest to enforce it.
(3) A member has such interest if, in the circumstances of any case, failure to comply with the rule is resulting in, or will result in, material detriment to the value or enjoyment of the member’s ownership of the unit.
Further provision as respects deeds of variation
11.—(1) Where a deed of variation is granted no grantee is...
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