The applicants are house-builders who acquired farming land zoned for housing and now hold detailed planning permission for a development the layout of which would involve altering the route of an access road over which the respondents have specific access rights. The applicants sought an order varying the access right accordingly. The Tribunal have decided on a consideration of all the evidence and submissions o grant the application and make a variation order. The respondents, however, wish to claim compensation. That claim, if maintained, is to be considered at a later date. For that reason we are not able to make a formal variation order at this stage. This opinion, however, records the Tribunal's findings and reasons for deciding to grant the application.
A transitional issue arose because although this is an application made under Section 1 of the Conveyancing and Feudal Reform (Scotland) Act 1970 ("the 1970 Act") the hearing on the merits of the application commenced on 30 November 2004, i.e. after the 'appointed day' (28 November 2004) on which Sections 1 and 2 of the 1970 Act were repealed and various provisions including the relevant provisions of the Title Conditions (Scotland) Act 2003 ("the 2003 Act") came into force. Submissions on the question as to which Act was relevant were heard at the commencement of the hearing. The Tribunal are of the view that the application should be considered as an application made under the 2003 Act, but in the circumstances have considered the position under both Acts. We are in any event clear that the outcome would be the same either way.
The subjects, located at Lochend East Lothian, comprise 13.07 hectares lying to the north of the trunk A1 trunk road and west of Spott Road which leads from the trunk road to Dunbar. The burdens are all in respect of a servitude right of access ("the access right") leading south from Hallhill Steadings to the A1 trunk road by a specified route. As far as the respondents' titles are concerned, the access right is expressed in a Disposition by Alexander Taylor in favour of David Davidson Gallacher recorded G.R.S. East Lothian on 28 June 1988 (from which the respondents' titles are derived) as follows:—
"… a heritable and irredeemable servitude right of pedestrian and vehicular access and egress to and from the subjects hereby disponed to my said disponee and his foresaids over the access road leading from the main A1 trunk road to the subjects of sale as the said access road is coloured blue on the plan annexed and subscribed as relative hereto"
Section 1 of the Conveyancing and Feudal Reform (Scotland) Act 1970 provides:—
"(3)… the Lands Tribunal, on the application of any person who, in relation to a land obligation, is a burdened proprietor, may from time to time by order vary or discharge the obligation wholly or partially in relation to the interest in land in respect of which the application is made, on being satisfied that in all the circumstances,
(a) by reason of changes in the character of the land affected by the obligation or of the neighbourhood thereof or other circumstances which the Tribunal may deem material, the obligation is or has become unreasonable or inappropriate; or
(b) the obligation is unduly burdensome compared with any benefit resulting or which would result from its performance; or
(c) the existence of the obligation impedes some reasonable use of the land".
Sections 98 and 100 of the Title Conditions (Scotland) Act 2003 provide:—
"98. An application for the variation, discharge, renewal or preservation, of a tile condition shall, unless it falls to be granted as of right under section 97(1) of this Act, be granted by the Lands Tribunal only if they are satisfied, having regard to the factors set out in section 100 of this Act, that—
(a) … it is reasonable to grant the application;
…
"100. The factors mentioned in section 98 of this Act are—
(a) any change in circumstances since the title condition was created (including, without prejudice to that generality, any change in the character of the benefited property, of the burdened property or of the neighbourhood of the properties);
(b) the extent to which the condition—
(i) confers benefit on the benefited property; or
(ii) where there is no benefited property, confers benefit on the public;
(c) the extent to which the condition impedes enjoyment of the burdened property;
(d) if the condition is an obligation to do something, how—
(i) practicable; or
(ii) costly,
it is to comply with the condition;
(e) the length of time which has elapsed since the condition was created;
(f) the purpose of the title condition;
(g) whether in relation to the burdened property there is the consent, or deemed consent, of a planning authority, or the consent of some other regulatory authority, for a use which the condition prevents;
(h) whether the owner of the burdened property is willing to pay compensation;
(i) if the application is under section 90(1)(b)(ii) of this Act, the purpose for which the land is being acquired by the person proposing to register the conveyance; and
(j) any other factor which the Lands Tribunal consider to be material.
Article 1 of the First Protocol ("Article 1") of the European Convention on Human Rights ("the Convention"), provides:—
"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
"The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with general interest or to secure the payment of taxes or other contributions or penalties"
Interpretation Act 1978
Scotland Act 1998
Lands Tribunal for Scotland Rules 2003 (S.S.I. 2003 No. 452)
Gloag & Henderson, The Law of Scotland, 11th Edition
Zainal bin Hashim v Government of Malaysia [1979] 3 All E. R. 241
Miller Group Ltd v Gardner's Executors 1992 SLT (Lands Tr.) 62
Mackay v Lord Burton 1994 SLT (Lands Tr.) 35
Stevens v Smith LTS/LO/1996/16 16 May 1997
Pender v Sibbald Properties Limited LTS/LO/1998/6 25 September 1998
MacTaggart v Campbell LTS/LO/2000/23 10 January 2002
Smart v Myerscough and Others LTS/LO/2001/32&33 1 March 2002
Henderson v Barden 2001 HousLR 119
Human Rights Act 1998
Sporrong and Lonnroth v Sweden (1983) 5 E.H.R.R. 35
Mellacher and Ors. v Austria (1990) 12 E.H.R.R. (CD) 97
Tre Traktorer Aktiebolag v Sweden (1991) 13 E.H.R.R. 97
Strathclyde Joint Police Board v Elderslie Estates 2002 SLT (Lands Tr.) 2
Elia Srl v Italy (2003) 36 E.H.R.R. 9
The applicants are George Wimpey East Scotland Limited as owners of the subjects as specified in the Disposition by James Mcneil (with consent) in their favour dated 16 April 2004 and registered in the Land Register under title number ELN 8758. The applicants have obtained detailed planning permission for a housing development on the land affected by the access provision. Their application was for variation of the access route specified in the title conditions. At the hearing, they were represented by Mr Peter Braid, solicitor, who called in evidence Mr Malcolm B Tait, a development director, and Siobhan M Browne, a land negotiator, both employees of the applicants. The respondents, as benefited proprietors who object to the application, are the proprietors of fifteen dwellings at Hallhill Steading. They were represented by Mr William Fleming, 6 Hallhill Steading, who himself gave evidence. In addition, Mrs Fiona Fleming, also of 6 Hallhill Steading, had made a written submission of arguments particularly in relation to Convention rights. The applicants had responded in writing to this submission, and the oral hearing also touched on these arguments.
Certain other benefited, or possibly benefited proprietors, who had received intimation of the application, did not object or appear.
The applicants initially sought variation in two parts: firstly, to allow access to be taken through the area of their proposed housing development by a new estate road following an altered route ('the Part 1 diversion'); and secondly, on the basis that the point of access to the former A1 road would be stopped up by order of the local authority, to re-route access to the A1 through a new estate distributor road running eastwards towards another new roundabout located to the east ('the Part 2 diversion'). During the hearing, however, it became clear that the applicants' land did not extend to the part of the access road involved in the proposed Part 2 diversion and therefore that they were not in a position to seek that particular variation. The application was therefore limited to the Part 1 diversion.
In addition to the oral evidence and documentary productions lodged by the parties, the Tribunal made an unaccompanied site inspection.
From the oral evidence, productions and our site inspection, we established the following facts.
In the mid-to late 1980s farm land and buildings were sold off in and around the steadings at Hallhill Farm south of Dunbar. In total, six 'breakaway' dispositions were granted, one of which in turn formed the foundation title for the 15 steading properties, i.e. the respondents' subjects. All six original dispositions provided, in similar terms, the access right over an existing farm road to connect with the A1 trunk road. The route was defined in the title deeds for these properties and the road surface was laid with concrete. The access route is about one half of a kilometre long and 2.48 metres wide. It is almost straight, with two gradual bends. Two lay-bys were provided. There is a dip in the access road about half way along it which restricts visibility of any oncoming vehicle. It is lightly trafficked so that despite its physical limitations use of the access is normally unimpeded. The route of the access road was through open fields on both sides, with woodland on part of one side. Running along the east side of the access road there is a stone wall. That wall is Listed Category C.
Spott Road to the east of Hallhill Farm connects Dunbar with the A1. Extensive urban expansion of Dunbar had already occurred to the west of Spott Road and to the north-east of Hallhill Steadings. In the 1990s a further expansion of the town was planned for the area west of Spott Road and north of the A1. In 1997 outline planning permission was granted for a change of use of agricultural land at Lochend/Hallhill Estate to leisure/recreation/industry/commerce and housing. Five hundred houses are to be built on an area of former farm land extending west from Spott Road, across the access road to within 100 metres south of Hallhill Steadings and curving round to the west of the Steadings, again to within about 100 metres of them. The development to the south and west of the Steadings is to be screened with a belt of trees. Apart from the area of woodland already referred to, which is to be used as public open space, the access road will no longer pass through rural surroundings but through housing development on both sides, for most of its length
The development of five hundred houses is being carried out in phases by different developers. Each of the separately developed parcels connects with a system of distributor roads connecting to Spott Road and north to the earlier area of expansion. Development started in 1999 and has moved west. The applicants have commenced development of the burdened land. They propose to build 115 houses. About 300 metres of the middle section of the access road pass through the subjects. The 100 metres each of access road to the north and south are unaffected by this development. The southern boundary of the subjects coincides with the outer edge of a distributor road. Between that edge of the distributor road and the A1 the access road will continue to pass through open fields.
While the area to the west of Spott Road was being developed with housing the A1 trunk road was being upgraded to dual carriageway standard and realigned. The improved A1 was opened in 2002. Spott Road is now connected to the A1 by a roundabout. Traffic entering or leaving any of the new housing areas and using the A1 will proceed along the internal distributor roads to two junctions with Spott Road and then proceed along Spott Road to the roundabout. Going west from the roundabout the new dual-carriageway bears south away from the alignment of the old A1. The new alignment separates from the old just east of the point where the access road meets the old A1. It is still possible therefore for the users of the access road to connect with the old A1 and to continue west as previously, to any destination in that direction. However, any user exiting on to the old A1 and intending to travel east must first travel west for half a kilometre to a new T-junction with the new A1. Only then can the journey east be commenced.
When considering the layout for the 115 houses they would be permitted to build on the subjects Wimpey were aware of the access road and the rights of its users. A first attempt at a layout contemplated the access road remaining as a corridor between new housing. However, any layout had to allow for the distributor road along the southern boundary of the subjects which will connect this parcel of housing development with the already developed road network. Inevitably the access road would require a crossroad junction at the distributor road. Negotiations were conducted by the applicants with local planning officials from whom it became evident that there was resistance to the idea of leaving a road, of the standard of the access road, within the housing area where it would be open to use by the public at large, and to incorporating a crossroads, with inherent accident risk, into the road layout. The planners were also unhappy about the access road through the housing area being retained as a footpath because of the security risk and loss of privacy to neighbouring houses. It was also confirmed that the wall running along the east side of the access road was to be preserved along its whole length save for a permitted breach to allow the distributor road to connect with the existing road system.
In the face of resistance by the planning officials to retention of the access road through the proposed housing development the applicants prepared a scheme which permitted continuation of the access road alongside the woodland to the east, and linking into the housing development just before the point where houses would be built on both sides of it. In discussion with the users of the access road it was determined that leaving or entering the access road at this point would be difficult because of the existence of the dip in the road and the inability to determine whether a vehicle was coming before being committed to entering the access road. Accordingly the diversion of the access road was moved further north, closer to the northern boundary of the development. Detailed planning permission was then received in January 2004 for a housing layout which extinguished about 150 metres of the access road where it passed through the housing area. The stone wall was to be retained to form the boundary between the back gardens of adjacent houses. The access road was thus diverted into the north-east corner of the housing area on to a new estate road 5.5 metres in width with pavements, lighting and three speed bumps. This estate road would be developed with 26 houses each having two off-street parking spaces. The estate road would meet the distributor road at a T-junction about 30 metres west of the present access road. The distributor road will be 7.3 metres in width with grass verges and 2 metre footpaths on either side. The diverted access would continue for the short distance along the distributor road to the point where the most southerly section of the access road continues to the old A1. The additional distance involved in this diversion over the original route is about 140 metres. The distributor road and the estate road, and pavements, will be surfaced in tarmacadam and built to an adoptable standard. Adoption of these roads will occur 12 months after they have been completed to a satisfactory standard.
On the basis of this approved plan, the Planning Committee of East Lothian Council have indicated their intention to make Stopping Up and Diversion Orders in relation to the access road, as allowed for in terms of sections 207 and 208 of the Town and Country Planning (Scotland) Act 1997 in order to enable development to be carried out in accordance with the planning permission. The respondents are opposed to both proposed orders.
The proposed Diversion Order relates to the public right of way which runs through the subjects. The planning permission of January 2004 is subject to conditions including one which prohibits development of housing west of the access road until this Order has been made and confirmed, following which a safe public right of way must be provided over the subjects between the southern boundary and the north-east corner of the site. Another condition prohibits occupation of housing on the estate road forming the diversion route until the new access road serving the residential properties at Hallhill Steading (i.e. the respondents' houses) has been formed and made available for use for vehicular access to the residential properties at Hallhill Steading.
No development of roads or buildings has yet taken place west of the access road. It would take some three to four months to construct the part of the distributor road and the estate road in order to make the connection to the access road and enable a diversion to be made. During that time the access road would remain open. After that time the estate road would be lined with fencing to keep the public out of the building site and to secure the safety of those using the estate road. The continuation of building work will depend upon the rate of sales but a present estimate is that it could be about 12 months before the fences lining the estate road would be removed.
The proposed Stopping Up Order would be in respect of the present connection made by the access road to the old A1. The effect of the Stopping Up order would be to force users of the access road (and residents of the new houses) to use the distributor road to Spott Road to undertake any journey. The stretch of access road between the distributor road and the old A1 is outwith the burdened subjects. Until the Stopping Up Order is confirmed a connection from the distributor road (which is on the subjects) will have to be maintained, as otherwise there would be unlawful obstruction of the servitude right of access. It would not be possible to prevent members of the public using this stretch of access road.
The applicants had consultations with the residents at Hallhill Steadings. Initially letters were sent to access road users. Meetings were then held in the Community Hall from May 2003. Issues were discussed in respect of the development generally and the access road in particular. The possibility of connecting with the mains drainage system and the gas system was discussed. Drawings were left with the residents group and feed-back from them was received. Meetings were also held on site. As a consequence of this process the connection of the access road was taken further north for the reasons already explained. Initially the residents were willing to accept the applicants' proposals, but they had not at that time fully considered the title position. A separate issue was that of access during the construction period for which a meeting with the applicants' production team was arranged. The negotiations were conducted over a period of about nine months.
By early 2004 the question of payment to the proprietors by the applicants was being discussed and, in addition to making drainage and gas connections, a sum of money payable to each property was offered. On 12 February 2004 Mr Stewart McKerracher, Chairman of the Hallhill Residents Association wrote to the applicants indicating that they did not wish to proceed with the proposed variation to their existing servitude right of access. On 27 February 2004 Pauline Mills, the applicants' land manager, wrote to Mr and Mrs McKerracher re-stating the terms of their offer. If this were not to be accepted by all of the owners then the letter said that "… we shall merely take the approach previously stated and amend our current layout to allow the servitude right of access to remain in place." By that date, however, this was no longer possible under the planning permission which had been obtained and any attempt to revert to such a plan would have faced serious obstacles with the planners. The letter was an attempt to persuade the residents to accept the payment terms then on offer. The present application to the Tribunal was made in August 2004. By letter dated 30 September 2004 the applicants made a renewed offer, with an increased payment per property. This was not accepted.
Mr Braid submitted that although the relevant provisions of the 1970 Act had been repealed and there were no express transitional provisions, this application should nevertheless proceed as if under the 1970 Act. In his submission, the effect of Section 16(1)(c) of the Interpretation Act 1978, applied to Acts of the Scottish Parliament by Schedule 8, paragraph 16 of the Scotland Act 1998, was that the repeal did not affect the applicant's right under the 1970 Act to have an existing servitude varied where the right was now differently formulated. There was also, he said, the matter of the right of 'affected persons' under the 1970 Act to be heard in relation to such applications, albeit that did not arise in the present case, where the respondents were benefited proprietors. To affect a pending action, the language would have to be 'such that no other conclusion is possible than that that was the intention of the legislature' (Zainal v Malaysian Government, at page 245c). Rule 31 of the Tribunal's Rules was purely a procedural provision. The presumption in the Interpretation Act did not apply to procedural provisions. He also referred to Gloag and Henderson at paragraph 2.19.
Mr Braid made submissions under the 2003 Act first. A servitude right of access was a title condition, making application under Section 90(1)(a)(i) competent. In terms of section 98 the Lands Tribunal could only grant a variation if it were 'reasonable' to do so. He accepted therefore that the applicants' proposal must be reasonable, but pointed out that the reasonableness of the respondents was not relevant.
He then addressed the factors contained in section 100 of the 2003 Act.
In respect of subsection (a) he submitted that there was change of use from farming to housing. The area to the west of the Hallhill Steadings was zoned for housing. When the servitude right of access had been created there had been no planning permission for the subject land. Further change had been caused by improvements to the A1 trunk road. There had been direct access to the trunk road. That was no longer the case. The Tribunal had to consider what effect the change in circumstances had on reasonableness. The respondents had accepted that the alignment of the proposed access road per se was not a material factor. Although the proposed route was slightly longer than the existing one there was little difference in terms of convenience. The fact that the planning officials were unhappy with a crossroads at the junction with the distributor road was also relevant to changing circumstances. Planners were best placed to judge safety issues. The respondents' titles did not prevent the applicants developing on the line of the access road with a new road and with frontage development. Therefore the proposed variation was not unreasonable given the changes in the circumstances at the subjects.
On (b), Mr Braid submitted that the particular benefit to the respondents was access to the A1 to the south, which was to be retained. The proposed variation (the Part 1 diversion) would retain access to the A1 and the respondents would still be able to use the shorter route to the west end of Dunbar. On the other hand the respondents would gain through the greater convenience of some journeys. This variety of outcomes was at worst neutral as there would be no loss of benefit to the respondents, apart from having to drive through the estate.
On (c), Mr Braid accepted that the access right did not completely impede development. It did impede the particular development for which the applicants had planning permission. On the evidence, even a fresh application leaving the access road intact would leave the issue of the crossroad junction to be dealt with. Another solution would involve time and money while the junction problem would remain. It was irrelevant that the applicants had bought the subjects in knowledge of the burden.
Factor (d) had no application in this case.
On (e), Mr Braid submitted that in the context of a servitude right of access the factor of time was of no relevance where there was a question of change of circumstances.
On (f), Mr Braid submitted that the only purpose of the servitude right of access was to give access to the south from the Hallhill Steadings. It provided access over a route from A to B. It was not part of that purpose to provide amenity or a pleasant drive. The access road could lawfully be converted into a housing estate road. Therefore the purpose was being fully preserved.
On (g), Mr Braid submitted that there was consent to develop in a particular way which was prevented by the servitude. He referred to Miller Group Ltd v Gardner's Executors. As it was clear that section 100 of the 2003 Act required the Tribunal to take into account a range of factors in addition to the existence of planning permission such permission was not therefore conclusive. Previous cases, such as Miller, considered under the 1970 Act, had usually been concerned with weighing the private interest against the public interest where amenity was often the principal issue, with the public permission prevailing in most, but not all cases. Here, there was no amenity issue. The planning permission perhaps carried more weight than in other situations. The respondents' argument that the applicants could do something different was irrelevant, under the 2003 Act as under the 1970 Act.
In respect of subsection (h) Mr Braid submitted that the applicants were willing to pay compensation, although they would only do so if a variation were to be granted. In his submission it was immaterial whether such a payment was for inconvenience to the respondents in the short term or for any other reason. It did not matter what the payment would actually be for but it was fair to say that a payment of £2,500 per property was "in the right ball park". However, even if there were no payment the application would still be reasonable. The applicants would make payment even if none was strictly due. In any event this was certainly not a case where the loss to the respondents would be so grave that there should be no variation at all.
In respect of subsection (j) Mr Braid reviewed seven other factors which he considered to be relevant: on journey distances, under the Part 1 diversion, the respondents would gain, by being able to use the distributor road also, and any increases were de minimis; the new estate road would be wider, safer, lit and maintained to a higher standard at no cost to the respondents — the new road would be better; it was relevant that the applicants had tried to negotiate and had adapted by changing the position of the link to the existing access road; the letter of 27 February did not indicate any binding agreement or create any personal bar; the suggestion that there was any material inconvenience in driving through the estate road could not be accepted; maintaining the existing access road, even as a cocooned corridor, would create safety issues in the context of a modern development; and loss of ambience in the use of the access road was not relevant.
Weighing up all of the factors in section 100, Mr Braid submitted that the variation proposed was reasonable. The relevant factors either favoured the applicants or were neutral. He referred to Henderson v Barden where the test which had been applied to variation of a servitude right of way was whether the proposed route was either the same or superior to that existing. Factors of surface and topography were relevant to that comparison. It was not simply a question of distance. Against such a test, it was clear that the variation was reasonable.
If the 1970 Act still applied, Mr Braid submitted that the tests under Section 1(3)(a) and (c) were both met. For the reasons already stated, the character of the land and neighbouring land had changed and the burden of allowing access by the specified route had become inappropriate. There was no reason at all why the objectors required access along that particular route. The suggestion that (a) was limited to issues relating to amenity was without foundation. On (c), the existing access road was impeding a reasonable use of the subjects. He had already referred to the existence of planning permission, which was of great weight here.
Responding to the argument based on Convention rights, Mr Braid submitted that neither the 1970 Act nor the 2003 Act required to be construed any differently to be consistent with the respondents' Convention right. The Tribunal had decided, in Strathclyde Joint Police Board v Elderslie Estates, in a slightly different context, that the 1970 Act, as it had been construed previously, was compatible with the Convention right. Mr Braid analysed the right under Article 1 of the First Protocol under the three heads identified by the European Court in Sporrong and Lonnroth v Sweden. The access right should not be considered in isolation but rather in the context of the respondents' property as a whole, i.e. as a right of access to their land. Variation of the access route was therefore not a deprivation of their possessions. Even if it was, the respondents' approach to the public interest was erroneous. The question would be whether the Act, in so far as it permitted deprivation of property, was in the public interest. The scheme, and the purposes, of the Act were clearly in the public as well as the general interest. The provisions of both Acts also satisfied the requirement of proportionality. The legislature had applied the wide margin of appreciation afforded to it in relation to interference with property rights in conferring this jurisdiction on the Tribunal. A fair balance had been struck between the demands of the general interest of the community and the requirements of protection of individuals' fundamental rights. To deny the application would in effect deprive the applicants of their right to apply to the Tribunal for variation. It was in any event not accepted that the respondents would be deprived of factors of significant value.
On the basis that there would be no substantial difference in the approach which the Tribunal would take under the 2003 provisions compared with the former law, and that the applicants would not have the opportunity to re-cast their application, Mr Fleming made no submissions on this matter.
Mr Fleming submitted that the respondents' intention was to ensure continued and undisturbed enjoyment of the existing access road. They did not wish to deprive the applicants of their possessions nor to impede the applicants in their reasonable use of the subjects; neither did they seek financial compensation. They sought to challenge the reasonableness of the application in all the circumstances. The applicants had been aware of the servitude right of access as a burden on the subjects when they purchased them and there was an admission by the applicants that it was possible to develop the land in different ways. The application was therefore unreasonable.
In approaching this action the respondents had made their initial analysis on the provisions of section 1(3) of the 1970 Act, but they had also considered the equivalent provisions in section 100 of the 2003 Act.
Regarding the evidence which had been given by the applicants Mr Fleming submitted that his principal impression was one of uncertainty in the application. He gave examples. It was not clear what the applicants meant when they said that they would offer a connection to the mains drainage system when there was no evidence that such a connection would be approved by Scottish Water. The application referred to demolition of the stone wall to the side of the access road yet the planning permission only permitted a breach for the distributor road to pass through. It was unclear what the payments which had been offered were actually for. This uncertainty had been compounded by the reluctance of the applicants' witnesses to confirm the purpose of the letter of 27 February 2004. The letter afforded the respondents a choice of accepting the package offered or maintaining the status quo. This issue became muddied during the proceedings. Nevertheless the application (in Part 3 'Amenity') clearly stated, 'Whatever the outcome of this application, there will in the future be housing on either side of the existing road'. That statement seemed to say that regardless of the outcome of the application there would be development of housing without variation to the existing access road. The respondents were confused by these uncertainties in the applicants' mind. Neither of the applicants' witnesses had been able to comment on what was in Ms Mill's mind when she wrote the letter of 27 February 2004, but she had written it as an agent of the applicants who should have known what was in their own minds. Finally the application had sought variation of the servitude right of access over land which the applicants did not own. This was further evidence that the application did not command full confidence.
Regarding the initial interest of the respondents in the applicants' proposals for variation of the route of the access road Mr Fleming explained that at these early stages they had not been aware of the nature of their rights or of the opportunity to have recourse to the Tribunal. Therefore these early negotiations took place in circumstances where the respondents were not fully informed and where the applicants were trying to rush matters to a conclusion.
Mr Fleming submitted that since the route proposed as a variation would be less convenient to the respondents it would be prejudicial to the enjoyment of their property as a whole. The new proposed route would be less convenient because the nature and quality of the exiting access would be prejudiced. The applicants said that the proposed access would be of a high standard but the existing access road was adequate and fit for its purpose. No higher standard was required. Having regard to the greater use, the standard of the proposed route might not always be higher and in any case standard was not the most significant factor. The proposed access would be a public highway through a densely built-up area and would be shared with the twenty six houses fronting on to it. Therefore it would be less easily navigated than the existing access road because of the volume of traffic, pedestrian movement, and speed bumps. These would all be impediments to access. Lighting would not be beneficial; indeed the need for lighting was confirmation of the prejudice that would be suffered by the respondents, because if lighting were to be necessary to reduce risk to the public it was clear that it was the new route which would cause an increase in risk. The changes brought about by the diversion of the access road were more prejudicial than had been conceded. These changes were detrimental to the respondents' quality of access. The letter of 27 February 2004 and the planning permission confirmed that there would be disturbance to the use of the access. The quality of access could be affected to a lesser extent.
If the variation were granted the narrow purpose, of obtaining access, would remain intact, but the use of the access as part of the respondents' enjoyment of their property would be diminished. Getting to their properties would be impeded by others sharing the route and given that there were other ways of developing the subjects that impediment would be greater than it needed to be. Because the applicants had not sought to develop their land in a manner that preserved the existing access road there was a lack of fair balance in their application which was critical when considering its reasonableness.
When the right had been granted its purpose had been to make the steading development attractive. That was the nature of the contract between the parties. That contract should be honoured by the applicants as successors in title. Sales of respondents' properties could be constrained during the period of transition when there would be physical disruption. That was why the respondents had raised the question of compensation, because this aspect would be an important one for them.
Turning to the grounds of the application Mr Fleming noted that subsection (a) in section 100 of the 2003 Act referred to 'any change in circumstances' while section 1(3)(a) of the 1970 Act, under which the application had been made, referred to 'changes in the character' of the land. In either case this did not seem an appropriate ground when the issue at stake was a right of access. The burden that exists is one which protects the respondents' right of access, not any aspect of their amenity. Mr Fleming referred to several cases (Smart v Myerscough, MacTaggart v Campbell, Pender v Sibbald and Stevens v Smith) where the issues under section 1(3)(a) had all been of amenity. Such issues all related to 'character', which the respondents considered to be a physical matter. In contrast the planning permission granted to the applicants was a matter of status, because it was a change of use rather than a change of character. Therefore it was difficult to see how a case could be made under subsection (3)(a). Mr Fleming noted that the applicants claimed that the character of the subjects had changed from farmland to land which had, or which would have, planning permission for housing. Although houses had been built to the east of the stone wall, no houses could be built, or roads formed, west of the wall until the matter of access rights had been determined by this Tribunal. Therefore, there was no physical evidence to say that the character of the land had changed. While there was, admittedly, planning permission it did not alter the character of the land. Since no physical change had taken place the application failed to meet the tests required by subsections (3)(a) of the 1970 Act or (a) of the 2003 Act.
The applicants were aware of the burdens when they had bought the land. The respondents had done nothing to add to the burdens of the applicants. Nothing had happened to the circumstances of the land that had changed the burdens from reasonable and appropriate to unreasonable and inappropriate. The applicants had stated in their application that variation of the access road was not critical to the development of the subjects with housing. The existence of the planning permission was therefore of little consequence. If a less damaging access were to be proposed, with some housing fronting on to it, there would have been no objection.
Mr Fleming said that the respondents had come to the same conclusion in respect of the grounds for the application made under subsection (3)(c) of the 1970 Act, or under subsection 100(c) of the 2003 Act. Their reasons for doing so were that the proposed development was unreasonable, as another layout could be substituted; the Tribunal should not give weight to a planning permission which was irrelevant; the continued use of the access road would only impede one particular use of the subjects not development of the site in the general sense; and, the respondents' enjoyment of the access would be prejudiced because of the inferior quality of the ease of access using a circuitous route through densely developed housing. While acknowledging that the need for access had not become unreasonable or inappropriate, the applicants had overstated the safety issues which they said rendered the route of the present access road inappropriate. A crossing junction was not uncommon. A mini-roundabout could be used. The possibilities for finding a solution did not seem to have been exhausted. It was perverse that the respondents should be required to make changes in their enjoyment of their possessions for risks to public safety occasioned solely by the actions contemplated by the applicants.
Where there was an option for the applicants to pursue which was not prejudicial to the respondents' rights it would be reasonable to expect the applicants to exercise that option and unreasonable for them to pursue their present scheme of development. Retention of the access road in a corridor between areas of housing development would be acceptable. The respondents could not say that would be unreasonable. In the practical circumstances, if housing were developed on either side of the access road, given that the stone wall must remain then frontage development could only occur on one side. If such an altered access were proposed Mr Fleming said that the respondents could not reasonably object. The respondents had never claimed that the access road was exclusive to them, but the fact that there were various ways of developing the land made the particular variation proposed unreasonable.
The respondents also relied on provisions of the Human Rights Act 1998 giving effect to their Convention rights, in particular under Article 1 of the First protocol. Primary legislation must so far as possible be read and given effect in a way which is compatible with Convention rights (Section 3), and it is unlawful for the Tribunal to act in a way which is incompatible (Section 6(1),(3)). The access right was a part of the respondents' ownership of their property and as such a 'possession' in terms of Article 1. The applicants being a private legal person, there was no public interest in dispossessing the respondents and the application must fail for that reason alone: that would confirm the applicants' existing possessions and not involve any deprivation or loss of benefit to them. Alternatively, in any event, the Tribunal must consider the application in the light of the broad principles of the Convention right. The Tribunal must consider what would constitute a fair balance between private persons, where no public interest was at stake. It was clear that a decision in support of the application would deprive the respondents of factors of significant material value.
Mr Fleming did, however, apparently accept at the oral hearing that the 2003 Act was compatible with the Convention right.
If the Tribunal were minded to grant the application Mr Fleming requested that a condition on the grant should be that the section of road through the housing area should have been adopted by the highway authority before the Tribunal's Order took effect.
Replying on the question of imposing a condition, Mr Braid pointed out that adoption of a new road by a local authority could only occur twelve months after it was competed to a satisfactory standard. That was an unreasonable delay. Planning condition 12 ensured that the roads had to be built to the required standard and in any case the applicants would always be under an obligation to provide access. Therefore the condition requested by the respondents was unnecessary.
Mr Braid also drew attention to the fact that in evidence the error in the application in respect of the demolition of the stone wall had been corrected. There had been no evidence that any other scheme of development, or road junction design, would be acceptable to the planning authority. Neither the contents of the letter of 27 February 2004 nor the possibility of retaining the access road as a corridor had been put to Mr Tait in cross examination.
In our view the effect of the provisions of and made under the 2003 Act is that as this hearing had not begun on 28 November 2004, we are to apply Part 9 of the 2003 Act and not Part 1 of the 1970 Act in deciding this application. We would point out that (quite understandably) the respondents did not make any submissions on this issue. We are in any event clear that the outcome would be the same either way. It is accordingly unnecessary to express a concluded view.
However, it seems to us that the repeal of Sections 1 and 2 of the 1970 Act, taken together with a set of transitional provisions which clearly indicates a discriminating approach intended to ensure that there is no retrospective removal of substantive rights, is sufficient to show this intention. Sections 98 and 100 and the surrounding provisions of Part 9 of the 2003 Act restate or re-cast the tests to be applied in applications for discharge or variation. The restatement clarifies matters and may lead to a more straightforward approach. It is not apparent that they will lead to any change in substance from the way in which the previous provisions were applied by the Tribunal over many years. If the applicants' right as burdened proprietors to seek variation or discharge had not been materially affected, a parliamentary intention that we should immediately commence to apply the new provisions would be understandable.
The transitional provisions to which we refer are, firstly, those contained in Section 119 of the 2003 Act, which include certain particular provisions to protect pre-existing rights where actions have been taken or proceedings commenced before the 'appointed day'; and, secondly, Rule 31(a) of the Tribunal's Rules of 2003. The latter is only a procedural provision, but we do not understand how it would fit in with continued application of the provisions of the old Act.
The situation of 'affected persons' under the 1970 provisions does not appear to us to cause any particular difficulty. Theirs was a procedural right to apply to be heard. Where 'affected persons' were admitted into the process under 1970 Act applications not yet heard, it seems to us that they will be in the process and entitled under Rule 31(a) to make representations as if they had been so admitted under Sections 93 to 96 of the 2003 Act. However, we recognise that this is not the situation we have had to deal with in this case and if such an issue is raised in another case fuller submissions on the point may require to be made.
In these circumstances we have looked at the case under both the 2003 Act and the 1970 Act.
We consider first the approach under the 2003 Act although, again, we need express no committed view in the absence of full submissions. It seems clear that we are now required, in a contested application, to look at a list of potentially relevant factors, together with any other factor which we consider material, and then, having regard to these factors, to decide whether we are satisfied that it is reasonable to grant the application. Some of the factors listed in Section 100 reflect the alternative grounds set out in Sections 1(3)(a), (b) and (c) of the 1970 Act. Others do not, but appear to us to spell out factors which were formerly considered by the Tribunal where appropriate. Section 100(j), allowing us to add factors which we consider material, is not entirely new, because it reflects the wording of Section 1(3)(a) and also the discretionary element which was involved in the Tribunal's consideration whether grounds were established and the application should be granted. Under the new provisions, as under the old, the Tribunal requires to proceed judicially and consider the issues on the basis of the evidence led and submissions of the parties. One factor which may have been placed in a slightly different position under the new provisions in relation to the merits is the position regarding compensation.
Mr Braid's approach was to go through all the factors in turn, considering whether they had any application and whether they did or did not favour the applicants' position. We found this helpful as a way of directing us to what could be said about each factor, with a category at the end of additional factors which Mr Braid suggested were material. We are inclined to think, however, that Section 100 does not require consideration, under each head, of whether the application succeeds or fails under it. Rather, as we see it at this stage, the task is to look at the evidence about the various factors and then weigh them up as a whole, judging, not, as it were, the result under each factor but rather the relative strength and weakness, in the overall issue of reasonableness in the circumstances of the case, of the various items of evidence in relation to the factors set out in the section, including of course the residual category.
Applying that approach in this case, we view the factors to which our attention has been drawn as follows.
Firstly, it does appear to us that there has been a significant change in circumstances since this title condition was created (which, as far as Hallhill Steading was concerned, took place in 1988). There has been no change in the character of the benefited property but there has been a considerable change in the character of the burdened land and the surrounding neighbourhood of both properties. The burdened land was farm land, but is now housing land. It has clearly now been so zoned for some time. The access road was a farm road, but is now a road through a housing development site. We do not accept the respondents' argument that only completed physical changes are relevant (or that only such changes were relevant under the 1970 Act). Large areas, including the subjects, have been dedicated to housing development which involves a hierarchical new road system which connects, via Spott Road, with the improved A1 trunk road. That road system is planned to connect with land to the west of Hallhill which is also zoned for housing and thus sets an imperative for the planned development of the subjects. In these changed circumstances there is a requirement to meet planning standards for the development of the road and footpath system. We accept the evidence that the existence of the very narrow access road, which would be open to public use, within a modern housing development, and also a crossroad junction on the distributor road, are unacceptable to the planning authority. The apparent intention of the local authority to proceed with two statutory orders, to divert the public right of way within the applicants' subjects and to stop up the connection between the access road and the old A1, support and strengthen that evidence, but we accept the respondents' evidence that there is still opposition to those measures so that it would be wrong to regard them as definite and therefore as independent established factors. The changes to the alignment and access arrangements to the main trunk road are further changes since the access right was created but are of no significance to the proposal with which we are now only concerned, viz. the 'Part 1 diversion'.
The right of access from the south side clearly benefits the respondents, being to all intents and purposes essential to their proper enjoyment of the property. On the other hand, the precise route taken appears to us be of no particular benefit to them. Nor in our view can it be said that the respondents derive any particular benefit from the standard of the road. It is a basic narrow concreted country road. In our view, when compared with the wider estate road which will be lit and publicly maintained, the present road cannot be seen to be advantageous. It is of course very much quieter and presently runs through much more attractive terrain, but these are not benefits to which the respondents are entitled under the condition.
Although there remains the theoretical possibility of altering the plans so as to maintain the access road in its present location, it is in our view plain that the access right as it stands does, to a significant extent, impede the enjoyment of the burdened property. We accept the applicants' evidence that they plan to enjoy their property, as, subject of course to planning permission, they would otherwise be entitled as owners to do, in a way which involves altering the route taken by the access road. As under Section 1(3)(c) of the 1970 Act, Section 100(c) allows the applicants to refer to a particular proposed development which is being impeded. The respondents may, and in this case do, point to other possible developments as limiting the extent to which the condition impedes enjoyment, but the respondents' preference as between alternative developments by the applicants is in itself irrelevant, except to the extent that it reflects one or more of the other factors listed in Section 100. We accept that the possibility of maintaining the present route has been explored and found at least difficult. The applicants face something of a planning impasse if this application does not succeed. There has of course to be added to that that the applicants do in fact hold detailed planning permission which involves the change in the access road and is accordingly, in terms of Section 100(g), a use which the title condition prevents.
The length of time which has elapsed since the condition was created (1988 as far as the respondents are concerned) is not particularly long. We agree with Mr Braid to this extent, that the relative importance of this factor is linked with the issue of change of circumstances. We would not, however, accept as an invariable rule that this factor is never of any relevance where there has been a change of circumstances. We can envisage situations in which applicants who either themselves recently agreed to, or on purchasing accepted, a burden, may not be in as good a position to rely on a change of circumstances when these factors are considered as part of the overall issue of reasonableness. In the present case the change of circumstances, viz. the change in the character of the land and neighbourhood, appears to us to be more significant than the relatively short period of time since the access right was granted.
We are of the clear view, and indeed do not understand there to be any real dispute about this, that the purpose of the access right is to afford a pedestrian and vehicular access between the houses at Hallhill Steading and the main road to the south. There has been nothing to suggest that the precise route was important to this purpose :it presumably may have been important to the farmer taking on the burden, but of no particular importance to the residents at the steading. The respondents also accept that there is no amenity purpose. No doubt in general the character of the land over which the access road runs added to the attractiveness of the situation, and it can well be imagined that the respondents would prefer it to have stayed that way, but as they have themselves conceded they have to accept the changes which are taking place around them. No variation of the access right would have been required if an estate road exactly like that which is now planned to replace the existing road had been placed in exactly the same position as the existing road.
It does appear that the applicants are willing to pay compensation if this application is granted, i.e. in exchange for variation of the access right. It seemed at times in the evidence that now that they have been unable to agree terms with the respondents, that willingness may simply be to pay compensation if the Tribunal so orders, i.e. if the respondents are able to establish that they will suffer loss or disadvantage in consequence of the variation. We of course heard evidence about the process of negotiation which took place but we do not consider that there is anything particularly unusual in the applicants' position and we do not regard this as a factor of any weight in this case.
A number of other factors were said to have been material. We have referred already to some of these. There was some evidence and discussion of altered journey times for residents of Hallhill Steading following the proposed alterations to their access. The 'Part 1 diversion' will increase very slightly the length of the access road. The respondents suggested it would also increase the journey time, perhaps particularly at busy times of day, such as when early morning commuters go for the same train. The comparison would have to be with using the existing access road, after the houses are occupied, if it were retained. We do not accept that there would be any material difference in journey times. We have already mentioned the comparison in standards between the existing and the proposed roads, and, overall, we agree with Mr Braid that there would be no material inconvenience in the proposed route through the housing estate. The matter of safety, mentioned by Mr Braid, is an aspect of the planning position already discussed.
We do not consider the history of negotiations to be of any materiality in relation to the merits of this application. Mr Braid pointed out that the applicants had tried to negotiate with the respondents. We of course would always encourage parties to resolve matters by agreement, but we do not think that either the fact, or the quality, of negotiations is normally of any significance, under the new provisions any more than under the old. The content of the negotiations may occasionally reflect, one way or another, on the reasonableness of positions taken up on the merits, and the history of the negotiations — or perhaps lack of them — might possibly be relevant in the matter of expenses, but in general we do not think that evidence about negotiations will often have a significant bearing on the issue of reasonableness of the application.
We do think that the respondents may reasonably feel that they were misled by the terms of the letter of 27 February, in which the statement was made on behalf of the applicants that if agreement was not reached no payment would be made and the applicants would simply revert to the plan involving retention of the access route. That seems not in fact to have been possible at that time, and certainly was not what the applicants did. Either the left hand did not know what the right hand was doing or the letter was not being entirely frank. However, we accept that no issue of personal bar arises and this matter does not in our opinion have any bearing on the merits.
As it seems to us, consideration of the following factors, in combination, lead to the clear conclusion that it is reasonable to grant this application (limited, as we have seen, to 'Part 1 diversion', i.e. altering the access route where it crosses the applicants' land):—
As we have indicated, it is the combination of these matters which leads us to consider this application reasonable. For example, the planning permission on its own is not decisive, and the approach in Miller Group Ltd v Gardner's Executors, and many other cases in which the extra dimension which the private interest may add has been considered along with the fact of planning permission, will continue to be relevant under the 2003 Act. In this case, when the private interest is looked at against the proposal and in the light of the purpose of the condition, in our view it bears little weight. The evidence of the real difficulty in retaining the existing access route is also significant.
Mr Fleming presented the respondents' position with moderation and skill. We ought, however, to explain why we have not been able to accept some aspects of their approach. The respondents appear to have believed that they were entitled to have the contract to which the applicants became a party honoured, or, putting it in property terms, to enjoy their property rights, including their right to use this access road, undisturbed. We entirely accept the importance of the purpose of this right, but the approach of both the 1970 and the 2003 Acts is to permit discharge or variation of rights if that does not conflict with a continuing purpose and is reasonable. Otherwise, benefited proprietors could either extract a ransom or hinder reasonable uses of others' property. Therefore, an approach such as that of the respondents, who asserted that it was unreasonable for the applicants to develop their land in any way inconsistent with the precise access right, is insufficient by itself if the applicants are able, under reference to the factors relevant in the circumstances, to suggest that the variation is reasonable. To the extent that the respondents' argument was that the proposed alternative right was materially inferior, we have considered and rejected that on the evidence. Mr Fleming carefully and sensibly disclaimed the suggestion that the purpose of the access right included protection of the respondents' amenity or the ambience of the approach to their houses, but we cannot help feeling that at root this is the problem which the respondents have with routing their access through a housing estate road as opposed to across the countryside. We can understand such a feeling but it is not one which advances the respondents' position in opposing this application. At all events, for the reasons which we have given, in our view consideration of the relevant factors compels us to find against the respondents.
Mr Fleming mentioned uncertainties arising out of the terms of the application as adjusted. It is sufficient for us to indicate that we do not consider there was any serious discrepancy which prejudiced the respondents' presentation or otherwise affected the overall issue of reasonableness. (We are of course not at present considering any issue as to expenses.)
We can deal extremely briefly with the position if the 1970 Act were held applicable. The technical approach to the issue is slightly different but we find that our views and reasoning lead clearly to the application succeeding under both Section 1(3)(a) and (c) of the 1970 Act. Both of those grounds apply in terms here. We are satisfied that changes in the character of the land affected make the obligation, in so far as it involves the specific access route, no longer reasonable or appropriate. We can find no warrant in either the terms of the 1970 Act or previous decisions of the Tribunal over the years of the Act's application for the proposition advanced by the respondents that (a) is only relevant to issues regarding amenity or that 'character' does not include planning status. We note that Henderson v Barden was a case in which consideration of an application in which availability of an access route and not amenity was the issue proceeded under Section 1(3)(a). In any event, (a) allowed consideration of 'other circumstances which the Tribunal may deem material', and were it necessary to do so we would find that applicable here. As to (c), 'some reasonable use' here is the proposal for which there is planning permission, which we regard as reasonable having regard to the purpose of the land obligation, the difficulty for the applicants of incorporating the existing access route into their proposal and the fact that we have found the alternative access proposed to be of at least equivalent standard. The planned use is clearly impeded by the access obligation. To the extent that the 1970 Act conferred on us an additional discretion whether or not to grant the application, we can find nothing to weigh in the scales against granting.
Finally, we deal with the argument in reliance on human rights legislation. We are not persuaded that consideration of the respondents' Convention right, now of course incorporated into our domestic law, affects the outcome of this application.
As we understood it, the applicants accepted that the access right is capable of giving rise to rights under Article 1 in relation to the peaceful enjoyment of possessions. It may not matter how exactly the access right is characterised for this purpose, but we agree with Mr Braid that it is not to be viewed in isolation, i.e. as a right of ownership or possession of the access road, but rather as an incident of the respondents' property rights — indeed, we did not understand the respondents to suggest otherwise. We also agree with Mr Braid that the primary question is whether the domestic legislation is compatible with the Convention right, and we consider that, whichever aspect of the Convention right is considered, both the 1970 Act and the 2003 Act are so compatible. Put shortly, while the provisions for variation or discharge of title conditions clearly do potentially involve interference with possessions, we do not consider that there is any failure to adhere with the Convention right when the purposes of the legislation, together with the statutory requirements for exercise of the jurisdiction and the compensation provisions, are considered. We think that the respondents' characterisation of the variation sought in this case (so as to qualify them as a 'victim' in terms of the 1998 Act) as amounting to deprivation of their possessions, is erroneous: at most, there will be interference with enjoyment. Even if we are wrong in that, we again agree with the applicants that the statutory provisions can be seen to be in the public interest even although they may, and in the present case do, extend to questions arising between two private 'persons': the public interest involved is not a direct legal interest of a public department or emanation of the state, but rather dictated by public policy. A fortiori, when the matter is judged against the limitation imposed by the Convention on interfering with, or controlling, the use of property, the statutory provisions appear clearly to fall within the margin of appreciation afforded to the member states. Again, the statutory provisions involve a proportionality, i.e. setting a reasonable balance between the interests of the community and of the affected individuals. Looking at the matter of proportionality in the circumstances of this case, we consider in particular that the findings which we have made in relation to the extent of the prejudice to the respondents in allowing variation under the 'Part 1 diversion', together with their right to compensation if they are able to establish any relevant loss, do produce a reasonable balance.
To a large extent, these matters have already been considered by this Tribunal in Strathclyde Joint Police Board v Elderslie Estates, and we refer to the Tribunal's discussion in that case of the application of the Convention rights in relation to the jurisdiction under the 1970 Act. In the present case, having regard to our view on the transitional issue, we are primarily considering the provisions of the 2003 Act, which reaffirm the right to apply for variation or discharge with, we think, no material difference. The particular provisions of the Scotland Act, in relation to human rights, would only require consideration if we found that the 2003 Act was not compatible. The context in the present case may be said to differ in three respects. Firstly, the argument in that case was around the compensation provisions not the 'merits'. Secondly, the land obligation in that case was a use restriction and not an access right. Thirdly, as the respondents correctly point out, the present dispute is between two private persons.
In the present case, Mr Braid analysed the true nature of the access right, which is obviously at least slightly different from the true nature of a use restriction, in support of his argument that there was no deprivation of possession in the Convention sense. In the Strathclyde case, the Tribunal considered competing arguments about the true nature of the use restriction. Having done so, however, the Tribunal were prepared to proceed on the basis that exercise of the jurisdiction under the 1970 Act was properly characterised as leading to a deprivation of possessions. They therefore addressed the issue of 'public interest' in Article 1. It is clear that their consideration of this issue was not affected by the public or private nature of the parties in a particular case. Rather, it is a question of discerning the public policy interest in the legislation. It also appears clear to us that the Tribunal was not simply addressing the issue of compensation but looking at the whole jurisdiction, in the light of the Convention rights, to see whether it struck a fair balance between the general interests of the community and the protection of individuals' rights. The conditions attached to the jurisdiction, and indeed the placing of the jurisdiction in the hands of an independent tribunal, are as much a part of the consideration of that balance as the right to compensation.
In these circumstances, we do not consider it necessary to embark upon our own analysis of this issue and are content to refer to the reasoning in the Strathclyde case, with which we in any event entirely agree. Apart from the consideration which the Tribunal gave to the status of established interpretations of the 1970 Act, their reasoning is equally applicable in our view to the provisions of the 2003 Act. We find these provisions, so far as applicable to the present case, compatible with Article 1 without any requirement to apply Section 3 of the Human Rights Act. These provisions give us jurisdiction to apply a fair balance as required under the Convention, and we have endeavoured to do so.
Accordingly, having considered also the respondents' arguments relying on the duties imposed on us by the Human Rights Act 1998, we confirm our conclusion that the application, in so far as directed at the 'Part 1 diversion', succeeds.
Two questions arise in this connection. Firstly, while the applicants merely seek an order varying, within their own land, the access route to be followed, the respondents argue that such an order should be subject to a condition that the applicants continue to permit access by the existing route until the new route is adopted by the local authority, or, in a slightly different formulation, that the variation order should not take effect until such adoption. Secondly, the respondents are to have the opportunity to claim compensation.
We appreciate the respondents' concern about the possibility of some partial completion of the alternative access route through the estate while house-building is ongoing, but we do not consider it is either competent or appropriate for us to impose such a condition as is sought. The respondents have, and will continue after the variation order to have, a right of access by a specified route. If there were any failure to permit such access, the right would require enforcement in the court. It is not the function of the Tribunal to enforce the exercise of the right. We would add that the condition sought would place an unreasonable burden on the applicants, whose house building operations to the east of the estate road which will become the access route would be seriously hindered if they had to await adoption of the new road. Further, the requirement to provide proper replacement access to the respondents' properties has been made a condition of the detailed planning permission. We do not therefore feel able to attach a condition of the type sought to the variation order which the Tribunal will make.
However, the variation order cannot immediately be made because it requires to await the outcome of the respondents' claims for compensation. As we understand it, the procedure which requires to be followed in a case where the Tribunal decides to grant an application but has to consider a claim for statutory compensation at a later date has not been changed under the 2003 Act. Section 90(9) is a new provision, whereby any direction to the applicant to pay compensation requires the applicant's consent. This, however, apparently merely confirms the existing practice. Rule 6(2) of the Lands Tribunal for Scotland Rules 2003 is in the same terms as the previous rule: if any compensation is awarded, the substantive order is not effective until the compensation is paid (unless the person in whose favour compensation has been awarded consents). We cannot therefore formally make the variation order until we have disposed of the claim for compensation. The respondents will be allowed a short period in which to consider, in the light of our decision, whether to continue with a claim for compensation and if so to lodge it. The respondents are referred to Section 90(7) of the 2003 Act, which sets out the basis on which compensation may be awarded. Assuming that their claims arise under Section 90(7)(a), they will require to give clear notice of the basis for claiming that they will suffer any substantial loss or disadvantage in consequence of the variation and how the claim is quantified. If they contest the claims, the respondents will have an opportunity to answer, and a hearing on compensation will then be fixed as soon as possible.
Finally, we would mention that we have not considered the question of expenses at this stage. It may be appropriate, if there is any issue as to expenses, for that matter to await determination of the compensation issue and then to be determined, under the Tribunal's normal practice, on the basis of written submissions.
| Representation: | ||
|---|---|---|
| for the applicants: | P J Braid, solicitor, Messrs Morton Fraser, solicitors, Edinburgh | |
| for the respondents: | W Fleming, party | |
| Heard: | Edinburgh, 25 and 28 January 2005 | |
| Sitting: | J N Wright, QC A R MacLeary, FRICS |
|
| Decision issued: | 12 January 2005 | |
LTS/LO/2004/19
Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland given and intimated to parties on 12 January 2005
Neil M Tainsh — Clerk to the Tribunal