Heritable property – Land obligations – Title conditions – Application to vary –Application under Conveyancing and Feudal Reform (Scotland) Act 1970 – Hearing commencing after coming into force of Title Conditions (Scotland) Act 2003 – Which provisions applicable – Title Conditions (Scotland) Act 2003, Sections 119, 129 – Interpretation Act 1978, Section 16(1)(c) – Lands Tribunal for Scotland Rules 2003, Rule 31

Heritable property – Title conditions – Variation – Servitude right of access –Delineated access road crossing housing development site – Proposed variation of route so as to follow route of new estate road – Factors relevant to reasonableness of application – Title Conditions (Scotland) Act 2003, Sections 98, 100 – European Convention on Human Rights, First Protocol – Human Rights Act 1998, Sections 3, 6

Heritable Property – Title conditions – Compensation – Servitude right of access – Variation of access route –‘sum to compensate for any substantial loss or disadvantage suffered by … the owner, as owner of the benefited property in consequence…’ – Damage during construction works rather than diminution in value – ‘Substantial’ – Title Conditions (Scotland) Act 2003, Sections 90(6),(7)

George Wimpey East Scotland Limited v Fleming & Others
12 January 2005
5 May 2005

The applicants were house-builders who acquired farming land zoned for housing and held detailed planning permission for a development the layout of which would involve altering the route of an access road over which the respondents had specified access rights. A transitional issue arose because the application was made under the Conveyancing and Feudal Reform (Scotland) Act 1970 but not heard until after the commencement date of the Title Conditions (Scotland) Act 2003. Sections 1 and 2 of the 1970 Act had been repealed on the ‘appointed day’. The applicants submitted that, to affect a pending action, the language would have to be such that no other conclusion was possible than that the legislature intended that the new provisions would apply in this situation, and Rule 31 of the Tribunal’s Rules was purely a procedural provision.

The existing access road, presently running along the side of a field, was about 2.48 metres wide and had a concrete surface. The planners had been unhappy about leaving such a road in use and crossing the main estate distributor road. Planning permission had accordingly been obtained on the basis of the diversion of the route to use a new estate road, around 5.5 metres wide, with pavements, lighting, etc., increasing the length of the route by about 140 metres. The respondents were house owners some 100 metres further along the access road. They opposed on the grounds that they wished to ensure continued and undisturbed enjoyment of their existing access road. The route proposed as a variation would be less convenient to the respondents and prejudicial to their enjoyment of their property. They claimed that the nature and quality of the exiting access would be prejudiced, and as there were other possible ways of developing the subjects the application was unreasonable. Further, the access right was a ‘possession’ in terms of Article 1 of the First Protocol. There was no public interest in dispossessing the respondents; alternatively, the application must be considered in the light of the broad principles of the Convention right: a fair balance must be achieved, and a decision in support of the application would deprive the respondents of factors of significant material value.

The Tribunal having granted the application, the respondents sought awards of compensation. They limited the basis of their claims to compensation for loss or disadvantage which they would suffer during the development works, and did not advance a claim bases on diminution in the value of their properties. The applicants accepted that such a claim for temporary damage was possible, but submitted that in the circumstances there was no ‘substantial’ damage.

Held, (1) The case should be considered under the provisions of the 2003 Act. The repeal of Sections 1 and 2 of the 1970 Act on the appointed day, together with a set of transitional provisions which clearly indicated a discriminating approach to ensure that there was no retrospective removal of substantive rights, was sufficient to show this intention. The new provisions restated the tests to be applied, perhaps leading to a more straightforward approach, but appeared not to make any change in substance: in that situation a parliamentary intention that these new provisions should immediately commence was understandable. It would be difficult to fit Rule 31(a) of the Tribunal’s Rules in with continued application of the provisions of the old Act.

(2) The application succeeded on the merits. The task under Sections 98 and 100 of the 2003 Act is to look at all the evidence about the factors enumerated in Section 100 and then weigh them up as a whole. It was not a question of 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. Consideration of the following factors, in combination, led to the clear conclusion that it was reasonable to grant the application: the purpose of the servitude, which was to provide access from the respondents’ houses to the main road, the precise route not being important and there being no purpose of protecting amenity; the major change in the character of the land, from farming land to land zoned for housing, thus changing the considerations affecting the access route; the fact that, on the planning evidence, the condition did, to a marked extent, impede the enjoyment by the applicants of the burdened property; and, as the Tribunal found, the fact that the proposed alternative access road was at least comparable in quality and convenience. The same result would have been arrived at under the 1970 Act: Sections 1(3)(a) and (c) would have been satisfied. The provisions for variation or discharge of title conditions clearly do potentially involve interference with possessions, but there was no failure to adhere to the Convention right when the purposes of the legislation, together with the statutory requirements for exercise of the jurisdiction and the compensation provisions, were considered.

(3) The claim for compensation must be refused, because the loss or disadvantage to the respondents could not be described as ‘substantial’. The Tribunal accepted that there would be some inconvenience from time to time to the respondents exercising their access right, but the applicants’ evidence describing the intended sequence of work, whereby there would be no construction traffic using the access route either before or after the current access route was removed, was accepted. On that basis, the inconvenience was likely to be occasional and not the type of substantial ‘loss or inconvenience’ which attracted compensation. The Tribunal did accept, on the authority of Wildtree Hotels Ltd and Others v Harrow London Borough Council, that a claim for temporary damage was relevant, there being nothing in the statutory formulation of the right to compensation to prevent that. However, there were difficulties in the way of such claims, particularly where there was no attempt to prove any temporary reduction in rental value. At least in a variation case, it would be difficult to establish causation: the variation itself did not authorise any breach of the respondents’ access rights.


Transitional issue

Zainal bin Hashim v Government of Malaysia [1979] 3 All E. R. 241
Gloag and Henderson, The Law of Scotland, 11th Edition
Interpretation Act 1978
Scotland Act 1978
Lands Tribunal for Scotland Rules 2003 (S.S.I. 2003 No. 452)


Miller Group Ltd. v Gardner’s Executors 1992 S.L.T. (Lands Tr.) 62
Mackay v Lord Burton 1994 S.L.T. (Lands Tr.) 35
Stevens v Smith LTS/LO/1996/16 16.5.1997
Pender v Sibbald Properties Limited LTS/LO/1998/6 25.9.1998
MacTaggart v Campbell LTS/LO/2003/23 10.1.2002
Smart v Myerscough and Others LTS/LO/2001/32 & 33 1.3.2002
Henderson v Barden 2001 Hous. L. R. 119
Human Rights Act 1998
Sporrong and Lonnroth v Sweden (1983) 5 E.H.R.R. 97
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 S.L.T. (Lands Tr.) 2
Elia Srl v Italy (2003) 36 E.H.R.R. 9


Caledonian Railway Co. v Walker’s Trustees 1882 9R. (H.L.) 19
Wildtree Hotels Ltd and Others v Harrow London Borough Council [2001] 2 A.C. 1
Smart v Myerscough and Others, supra
Rowan-Robinson, Compulsory Purchase and Compensation, 2nd Edition, p. 345

See full decision:  LTS/LO/2004/19 (Merits) and LTS/LO/2004/19 (Compensation)