OPINION

F.M.R. Craigmyle & Others v The Keeper of the Registers of Scotland

Introduction

[1] This is an appeal under sec 25(1) of the Land Registration (Scotland) Act 1979 (“the Act”). The appellants are Frank Miller Rorie Craigmyle, his wife Norah Craigmyle and their son Rorie Miller Craigmyle. They are heritable proprietors of subjects known as “Creagoran” at Glassel Road, Banchory. The respondent is the Keeper of the Registers of Scotland (“the Keeper”).

[2] Section 25(1) permits appeals to this tribunal on any question of fact or law arising from anything done or omitted to be done by the Keeper. Section 12(1)(b) of the Act entitles a person who has suffered loss as a result of the refusal or omission of the Keeper to rectify an error in the Land Register (“the Register”) to be indemnified in respect of that loss. In this case it is admitted that there is an error in the Register and the appeal is concerned with the quantification of the appellant’s claim under sec 12 and sec 13, which obliges the Keeper to reimburse any expenditure reasonably and properly incurred by a person in pursuing a prima facie well-founded claim under sec 12, whether successful or not.

[3] The error concerns a small area of land of roughly triangular shape (and referred to in the evidence and herein as “the triangle” or “the red triangle”) at the north end of the appellants’ property which, in the circumstances more fully described in the account of Rorie Craigmyle’s evidence below, has been wrongly entered on the Land Certificate in favour of the developers of a housing estate known as East Mains, lying to the north and east of Creagoran. The appellants say that this area of ground, which, having been part of their Sasine title, rightly belonged to them, formed a ransom strip in relation to the access road leading to East Mains and that they have been prevented from realising its value by the error made and the Keeper’s refusal to rectify it. Their claim initially included a sum in relation to what they said was the sterilisation, in development terms, of the north part of their land, on which Rorie Craigmyle intended to build a house, by virtue of the same error. However that aspect of claim was abandoned before the matter came to proof. The appellants now sue for a sum of £400,000 in respect of the value of the triangle as a ransom strip and the aggregate of £124,272.41 (being the sum already ascertained) and ongoing costs not yet quantifiable (but see para [186] below), as costs recoverable under sec 13(1).

[4] The Keeper’s position is that the triangle is not a ransom strip and that what the appellants are entitled to is a “frustration payment” equal to the amount the developers would have paid them in order to avoid the necessity of re-routing the access road. She quantifies this at £75,000. She accepts liability for the ascertained sec 13 costs.

[5] We heard three days of evidence on these matters, from 8 to 10 December 2015, when the appellants were represented by Mr Robert Howie QC and the respondent by Mr David Johnston QC. Due to senior counsel for the appellants’ other commitments and a bereavement, written submissions were not received until early March, 2016.

Authorities

Mr Howie’s written submissions included very full citation of authority for the various propositions advanced but, since none of them turned out to be contentious, the only case which is discussed in what follows is Stokes v Cambridge Corporation (1962) 13 P. & C.R. 77.

Statutory Material

The Land Registration (Scotland) Act 1979

12 Indemnity in respect of loss

(1) Subject to the provisions of this section, a person who suffers loss as a result of –

(a) a rectification of the register made under section 9 of this Act;

(b) the refusal or omission of the Keeper to make such a rectification;

shall be entitled to be indemnified by the Keeper in respect of that loss.

13 Provisions supplementary to section 12

(1) Subject to any order by the Lands Tribunal for Scotland or the court for the payment of expenses in connection with any claim disposed of by the Lands Tribunal under section 25 of this Act or the court, the Keeper shall reimburse any expenditure reasonably and properly incurred by a person in pursuing a prima facie well-founded claim under section 12 of this Act, whether successful or not.

25 Appeals

(1) Subject to subsections (3) and (4) below, an appeal shall lie, on any question of fact or law arising from anything done or omitted to be done by the Keeper under this Act, to the Lands Tribunal for Scotland.

The locus

[6] We carried out a site inspection on 5 May and it is convenient to say something about the physical layout of the relevant area at this stage, by way of setting the context for the evidence.

[7] The East Mains development lies to the east of the Banchory to Glassel road on the periphery of the village. Half of the houses, nos. 1-8, lie to the west of the triangle and look across open fields to the main road. The other seven lie to the east and south and are to the east of older village houses that run along the Glassel road. To the east and north of the fifteen houses lies higher ground and conifer plantations.

[8] The “east and west” of this description could also be viewed as referring to one side or another of the track of the former Deeside railway which at this point runs more or less north-south. The triangle forms part of the road that connects the two parts of the housing development across the former railway.

[9] The layout in a little more detail can be described as follows: the tarmac road from the public road runs approximately west to east for about 200 metres between grass fields at which point it branches. A spur continues east for around 70 metres providing access to plots 1-3 which lie west to east. The main run turns south past plots 4 & 5 and then south east past plot 6 on its north side and plots 7 and 8 (which is entered off a short spur) to the south. Nos. 4-8 lie more or less north to south of each other. At that point the road crosses the line of the former railway and then turns south for about 100 metres with three houses at either hand ending at a turning circle with a seventh house at the extreme south of this section of the development. This part of East Mains also includes a plot sized “SUDS” drainage area that lies on the south side of the access road at the north end of this section of the estate immediately adjacent to the former railway line. The appellants’ property consists of a 190 metre section of the former rail-track which they purchased in 1987 and on which, at its southern end, they built their home, Creagoran. The site at its southern end is about 23 metres wide, east to west, and narrows to a little over 7 metres at its northern end where it meets the new road created to provide access to the eastern section of East Mains.

[10] Access to Creagoran is from the Banchory to Glassel public road via a short access road running between it and a house known as Ealasaid. Ealasaid is occupied by Mrs Mabel E. Young whose late husband, Edward, bought the land comprising the former railway line from the British Railways Board in 1975.

The witnesses

[11] The following witnesses gave evidence:

For the appellants

Rorie Miller Craigmyle, 47, Creagoran, Glassel Road, Banchory

Bruce David Murdoch, 55, Chartered Surveyor, Graham and Sibbald, 21 Carden Place, Aberdeen

Ian Kelly, 61, Head of Planning, Graham and Sibbald, 3 Charlotte Street, Perth

Kevin Malcolm Moir, 32, Chartered Engineer, Goodson Associates, Leadside House, 62 Leadside Street, Aberdeen

For the respondent

Alastair Clark Watson, 55, Principal Surveyor, District Valuer Service, Baron Taylor Street, Inverness

Alan Robert Mitchell, 57, Engineer, Infrastructure Services Division, Aberdeenshire Council, Stonehaven

Their evidence

Rorie Miller Craigmyle (47)

[12] A statement of Mr Craigmyle’s evidence had been submitted in advance of the hearing and he began his oral evidence by adopting it.

[13] Mr Craigmyle lives with his parents at Creagoran. He is a strategic alliance director for an oil services firm. He holds a law degree and a post graduate diploma in legal practice from Aberdeen University but his current role is purely commercial in character and he does not provide legal advice.

[14] The first part of Mr Craigmyle’s evidence was by way of explanation of how the situation which had led to this application had come about. In or around 1992/93 there had been an approach by a Mr Frank Garden to the witness’s father about a proposed development to the east of Creagoran. Mr Garden was a director of Inchmarlo Land Company Limited (“Inchmarlo”). Nothing had come of these discussions at that time but they had been revived in or around 2000 when Mr Garden indicated that Inchmarlo were proposing a joint development with Frank Burnett Ltd. They required to involve the Craigmyles because access to the development was dependent on the Craigmyles selling some of their land at the north or granting servitude rights of access over it. The Craigmyles had seen this as an opportunity to develop their own land by building a house for the witness on the northern part of their property, taking access from the proposed new route. It was also part of the deal which was discussed that they would be given one of the plots on the land to be developed.

[15] Given the ongoing discussions, the Craigmyles had been surprised to receive notification of an application for outline planning permission for the development. They had not been a party to it nor informed of it, except by notification once the application had been submitted. They became concerned that matters were proceeding without proper consultation and without a proper legal agreement in place as to the various matters which had been discussed. Having engaged solicitors to represent their interests, a meeting with Mr Garden and Mr Frank Burnett had been held on 30 October 2002. It had served only to heighten the Craigmyles’ concerns. They felt that Mr Garden and Mr Burnett had not been frank with them. Their concerns had turned out to be well justified. In January 2003 there was failure to agree Heads of Agreement which the Craigmyles had been asked to produce and on 18 March 2003 agents acting for Inchmarlo intimated, in effect, the breaking off of dealings with the Craigmyles and an intention to go it alone.

[16] Aware of the importance of their land to the development, the Craigmyles had then made it their business to research thoroughly the title position in relation to the various interests surrounding the northern end of their property. That research had been carried out by the witness himself, engaging professional help as required.

[17] Despite being obstructed at almost every turn and having to resort to Freedom of Information requests to get information from the Keeper, that research had been successful. It had disclosed the state of affairs being presented to the tribunal in this application.

[18] With that, evidence turned to the chronology of the various conveyancing transactions which had brought us to where we were. Mr Craigmyle explained that his parents had bought the original site on which they built Creagoran from Edward Young in 1987. The ground extended to 0.2981 hectares or thereby as set out in the disposition in their favour, Production A1.

[19] Mr Young had retained a section of the line to the north of the Craigmyle plot, which his widow subsequently conveyed to her children, Mr Robert McGibbon and Mrs Anne Skea. The relevant disposition, recorded in the Register of Sasines on 24 May 2004, is Production A2. Mr McGibbon and Mrs Skea had in turn transferred part of the land they acquired from their mother to Inchmarlo, retaining a strip of ground to the south over which they granted Inchmarlo a servitude right of access for a two metre wide road verge subject to an obligation to erect, a metre back from the verge, a stone wall one metre in height. The relevant disposition, recorded in the Register of Sasines on 28 April 2005, is production A3.

[20] Mr Craigmyle’s view was that Mr McGibbon and Mrs Skea had no title to the strip of land purportedly retained in this way and over which said servitude had purportedly been granted. He believed it to form part of the land sold to his parents by the late Mr Young in 1987. (It should be noted that this stretch of former track runs north on the east side of nos. 4-6 East Mains and past the east boundary of No. 3 further to the north).

[21] On the same day as the disposition in favour of Inchmarlo was recorded in the Register of Sasines, there was also recorded a conveyance by Inchmarlo of a number of pieces of land, including the land that had been acquired from Mr McGibbon and Mrs Skea, to Frank Burnett Limited. This deed is production A4. The subjects conveyed also included the site of the eastern part of East Mains, the sites of nos. 7 and 8, and a number of associated rights. On 28 April 2005 the Scottish Ministers had granted in favour of Inchmarlo a deed of servitude for pedestrian and vehicular access and the installation of services over Forestry Commission land to the east of the former railway, subject to various fencing and other obligations. We shall refer to this as “the Forestry Commission servitude”.

[22] Also on the same date there had been registered in the Land Register, without exclusion of indemnity, title number KNC15640 in the name of Frank Burnett Limited to the land that had been conveyed by Mr McGibbon and Mrs Skea to Inchmarlo, including the right to create a two metre wide verge on the strip of land that Mr McGibbon and Mrs Skea had purportedly retained and the obligation for the construction of a dyke to the south of that verge. Production A5 is the title sheet showing this registration. The date of entry was 23 November 2003. It was this entry in the Land Register that lay at the heart of the loss sustained by the Craigmyle family.

[23] In October 2005 Mr Craigmyle’s parents had transferred to him a one fifth pro-indiviso share in part of their land, the area called the Craigmyle plot, for the purpose of a house. This was recorded in the Register of Sasines on 9 November 2005, Production A6.

[24] Mr Craigmyle then referred briefly to a number of additional deeds: production A7 was a disposition, dated 17 October 2004 (and registered on 2 December 2004), granted by Inchmarlo to a Mr and Mrs Bryan McNay in respect of No. 6 East Mains; production A8 was a disposition by Frank Burnett Ltd, recorded on 21 June 2005, in favour of Mr Craig Chapman in respect of no.7 East Mains; production A9 was a disposition granted in 2010 (the date of entry was 1 June 2010 and the date of registration appears to be 22 October 2010) by Frank Burnett Limited in favour of Mr and Mrs McNay of number 6 East transferring ownership of the area of former railway line to the north of the carriageway and verge of the access road to the McNays and incorporating it into their plot. This produced a result whereby the McNays from 2010 onward, but not before, owned the area abutting the land covered by the Forestry Commission servitude. We shall refer to this area as the extended plot 6.

[25] As well as researching the title position, Mr Craigmyle had investigated the position on the ground. In 2003, before the access road had been built, he had instructed Reid Massey, a firm of engineers, to carry out a survey in order to check whether the intended road would cross his family’s land. The survey confirmed that it would.

[26] This had been further confirmed by the Craigmyles’ architect, Mr Roger Legge, after the road had been built. It had been Mr Legge’s opinion that the road was not in the position shown on the planning application, it was further south.

[27] In December 2005 a wall had been built to the south of the road verge, presumably in implement of the obligation contained in the disposition by Mr McGibbon and Mrs Skea in favour of Inchmarlo. This had caused Mr Craigmyle to instruct a second survey from Massie Reid, production A46. This had clearly established that a triangular area of the carriageway of the road was on Craigmyle land, as was the area of the McGibbon/Skea servitude and the newly-built wall. A description of the method employed by Massie Reid is provided in Production A47. Mr Craigmyle demolished the wall.

[28] An updated analysis of the position in the autumn of 2015 was commissioned from Goodson Associates in the autumn of 2015. By that time Messrs Reid Massey had been incorporated into Goodsons and the updated analysis was based on the Reid Massey data from 2006,production A41. The result did not disturb the main conclusions of the earlier survey.

[29] There then followed an extended exchange of correspondence and meetings with a number of the Keeper’s staff in which a succession of firms of solicitors acted for Mr Craigmyle. An application for rectification was made in August 2006 and rejected by the Keeper in March 2007 on the basis that there was no proven inaccuracy in the register, see productions A12 & A13. Further exchanges ensued. Eventually a coloured copy of the disposition in favour of Mr McGibbon and Mrs Skea was obtained by the Keeper from their solicitors and it was established that their and Craigmyles’ titles were contiguous with no element of overlap. Following a meeting in July 2009, Mr Paddy Neill, a legal adviser to the Keeper, had written to Mr Craigmyle (production A14) acknowledging (i) that a comparison of the title in favour of Mr McGibbon and Mrs Skea and the Craigmyles’ title showed that the two sets of subjects abutted, with neither gap nor overlap, (ii) that a comparison of the Craigmyles’ title with the Land Certificate in favour of Inchmarlo showed that a small triangle of ground belonging to the Craigmyles had wrongly been mapped as belonging to Inchmarlo, as had the area of land over which Mr McGibbon and Mrs Skea had purported to grant a servitude in favour of Inchmarlo, a servitude which, Mr Neill’s letter acknowledged, had wrongly been made real by the Keeper’s error. Mr Craigmyle and his family had been aggrieved that it had taken five years to reach this stage.

[30] A meeting with the Keeper’s staff to discuss redress had followed, in October 2009. The options were rectification or compensation, but rectification had already been ruled out by Mr Neill’s letter. As to compensation, following further meetings and more correspondence, (productions A15 and A16) the Craigmyles had been told, in March 2010, that it would be necessary for them to obtain a valuation if they were to proceed down the compensation route and that once that was available, the Keeper would instruct her own valuation from the District Valuer (“the DV”)..

[31] Accordingly Mr Craigmyle had commissioned a report from Messrs Graham and Sibbald, Chartered Surveyors. Their advice, production A19 dated 6 November, 2015, was that the land wrongly registered was indeed a ransom strip, with a value of £400,000, and that in consequence of the servitude and dyke the Craigmyle plot had been sterilised, losing £225,000 in value. The Keeper instructed her own valuation from the DV in July 2010 but the resulting report, dated 25 November, was not disclosed to the Craigmyles. At this pointMr Craigmyle had hoped to be in a position to negotiate final settlement of matters in fairly short order but things had not been helped by the retiral of the members of the Keeper’s staff who had been dealing with the Craigmyles, in December 2010 and January 2011.

[32] An attempt to arrange a meeting with the successor case officer was refused. So Mr Craigmyle resorted to Freedom of Information requests to delve into the details of the matter. That process produced both the letter of instruction to the DV (production A23) and the DV’s report (production A22). This showed that the DV (in the person of Senior Surveyor Kate Paton) had assigned a value of £300,000 to what was accepted as being a ransom strip but did not attach any value to the sterilisation of the plot.

[33] This process also established that Aberdeenshire Council had confirmed to Ms Paton that realignment of the road would not have been possible once plot 6 had been built and sold and that adoption of the road, as built, by the local authority, was likely (production A36). Ms Paton had confirmed that position to the Keeper in a letter of 27 January 2011, production A37. The amount of the relative road bond was confirmed by the Council in a letter of 16 May 2003 (production A38). In addition, Mr Craigmyle had obtained copies of an email exchange between Mr Harry McNab, the developers’ planning agent, and the Council in July 2003 in which Mr McNab states in terms that “at this stage moving the access is not an option” (production A25). A further email from Mr McNab to the Council confirmed that the Forestry Commission would not release any more land “to the north of the area where the road is going thro(ugh)”, (production A26).

[34] Mr Craigmyle had continued to press the Keeper but it appeared to him that the position was now being taken that payment for indemnity could only be made after rectification had been refused and that the application they had made for rectification in 2006 was being treated as having been cancelled, not refused. Attempts to meet the Keeper personally had been unsuccessful. Mr Craigmyle had then raised a complaint with the Public Sector Ombudsman concerning the conduct of the Keeper’s office. In November 2012, the Ombudsman had found against the Keeper on two of three heads of complaint. The process had, nevertheless, disappointed Mr Craigmyle because he felt that a key witness who had retired had not been interviewed as part of the process.

[35] At this point Mr Craigmyle had decided to instruct Brodies and after various preliminaries a claim against the Keeper was lodged by them on 17 October 2014 (production A17)and acknowledged ten days later (production A18) in a response that made clear that, far from being interested in negotiating settlement, the Keeper had nothing further to say. The Craigmyles had therefore been left with no option but to bring this appeal. Having done so, liability continued to be denied until the eve of a debate scheduled to be heard by the tribunal in May 2015.

[36] Liability having finally been conceded, discussion had turned to quantification of the appellants’ loss. It had quickly become clear that the Keeper had altered her position, away from seeming acceptance that the triangle constituted a ransom strip and assessing loss on that basis, to one which proposed only a “frustration” payment. This approach, of course, depended on it having being possible for the developers to re-route the road, a matter which Mr Craigmyle began to investigate.

[37] For that purpose he had instructed Mr Ian Kelly of Graham & Sibbald to provide a report on the planning considerations relevant to realignment of the road (production A24) and Mr Kevin Moir of Goodsons to prepare additional drawings showing what realignment of the road would look like (productions A42, A43 and A44). These demonstrated that a four metre road with two metre verges could not be realigned so as to avoid his family’s property without requiring land from no. 6 East Mains and the Forestry Commission.

[38] Mr Craigmyle then spoke to a schedule of the costs that he had incurred, production A48, and confirmed that neither he nor his family were VAT registered and that the sums shown had been paid.

[39] Finally, turning to late productions that had been admitted with consent, productions A49-A61,Mr Craigmyle explained that these had been produced to compare the boundaries on the land certificate with those from the Goodman survey and replicated the approach taken in Productions A41-A44 showing the effects on the different bases.

[40] In cross-examination, in connection with the constraints on the road, Mr Craigmyle confirmed that there was an issue with a tree at the northeast end of the Craigmyle plot on the SUDS ground which required to be protected from damage. There were power lines to the north, services on the north side of the road carriageway and from the Gordon brothers’ property to the east. As regards the issue of the wall that had been built on the strength of the servitude, Mr Craigmyle agreed that whether that burden was enforceable was a question of law.

[41] In connection with productions A25 and A26 Mr Johnston put it to Mr Craigmyle that Mr McNab’s words were those of a developer’s agent seeking to move the project along and that they should be read in that light. Mr Craigmyle agreed with this but said that there was more to it because Mr McNab was in possession of information about title deeds that made it clear that the road had to be contained within a tight “envelope”.

[42] As regards the existence of walls and fences on site in 2006 when the digital survey was undertaken, Mr Craigmyle thought that the plots were under construction at that point. While he could not be certain, he thought that the fence and possibly the wall had gone. He confirmed that at the point of overlap of the two titles, the road carriageway was four metres wide with verges of two metres on either side.

[43] As regards valuations, Mr Craigmyle confirmed that while the original claim had been for two sums in respect of the ransom strip and the Craigmyle plot the claim was now only in respect of the ransom strip.

[44] In re-examination Mr Craigmyle confirmed that when he had instructed the second survey, in 2006, this had been because his architect had advised that the road had not been built on the line shown on the approved plans.

Kevin Malcolm Moir (32)

[45] Mr Moir stated that he was a Chartered Engineer and an associate in the firm of Goodsons Associates of Aberdeen. After graduating in 2005 he had worked in their Edinburgh office before moving to Aberdeen to head up their new office there in 2014. The Aberdeen office originally worked in partnership with Massie Reid but Goodsons had taken them over in 2015. His job included project management and other civil engineering work.

[46] In September 2015 Mr Rorie Craigmyle had contacted him to instruct further work related to Massie Reid’s surveys of 2003 and 2006. These surveys were held in digital files that could be loaded directly into their AutoCAD systems. The Reid Massey archive had proved reliable when used in other cases. He had been asked to use these files to determine the degree of encroachment of the East Mains access road onto the Craigmyles’ land and to look at realignments that might avoid doing so. He had produced sketches for his AutoCAD technician to enter on the system and had then checked the assistant’s work. He had visited the site and received information from Brodies.

[47] Production A1, the disposition in favour of Mr & Mrs Craigmyle, was the base document. There were also deeds for other properties, Productions A2-A4 and A11. He did not at that stage have Land Register documents. He had taken the dimensions from the Craigmyles’ title and added them to the digital information to produce a new plan giving the line of the northern boundary. Slight inconsistencies had been thrown up but they had no material effect on the conclusions reached in the earlier surveys. The line of the old railway fence had been used for measurement purposes as it gave the most conservative answer; that is, it showed the least encroachment of road onto Craigmyle land. The plan produced by this process, production A41, demonstrated that, as built, the carriageway of the road encroached to the extent of a triangular area shown red on said plan of about 5.8 square metres and a total encroachment including, the verge, of 16.7 square metres.

[48] Productions A42-A44 were designed to cover different scenarios. Production A42 was based on a four metre carriageway with two metre verges avoiding Craigmyle land. The outcome was that the realigned road entered plot 6 land and also entered Forestry Commission land beyond the area of the servitude as set out using the Ramsay and Chalmers drawing associated with production A11 (production 11/3). Production A43 was the same as production A42 but with the sightline guidance applied to the exit from plot 7. This altered the line of the road deeper into Forestry Commission, beyond the extent of the servitude. Mr Moir noted that the existing road “almost” achieved these sightlines and that some leeway was sometimes allowed by the authorities for driveways. Production A44 was on the same basis of a four metre carriageway and two metre verges but with the addition of a wall set back a metre from the verge as set out in the McGibbon/Skea servitude. This again required an incursion into plot 6 and Forestry Commission land beyond the servitude area. Production A46was a further detailed drawing demonstrating the difference in result in the definition of the encroachment depending on which fence line was taken for measuring the title dimensions.

[49] The additional drawings, productions A49-A61, followed from further instructions from Brodies in light of concerns expressed by the respondent as to the use of the Ramsay and Chalmers plan at production A11/3 for defining the Forestry Commission servitude area as against that in the registered title. Productions A49 and A50were the registered title plan and a blow up of the same. The first was Massie Reid’s drawing and the second was a composite of that drawing overlaid onto the Ramsay & Chalmers drawing. Goodsons had then produced productions A51-A53, showing the same drawing as in productions A42-A44 with the line of the servitude area from the registered title superimposed. In general the result was to provide more servitude area into which a realigned road could be moved; at the widest point an additional 3.4 metres was available. In all cases the encroachment onto plot 6 was the same. In the equivalent of Production A42, production A51, there was no encroachment onto Forestry Commission land beyond the servitude area. In productions A52 and A53, the equivalents of A43 and A44, there was an encroachment into both no 6 and additional Forestry Commission land but into the latter by a reduced amount.

[50] Production A54 had the purpose of comparing the Massie Reid survey data with the Craigmyle title dimensions plotted (as in Production 41) with the OS map used by the Register. This showed a difference in the area of encroachment of the carriageway of the road onto Craigmyle land; 5.8 square metres (as in no.41) if the Massie Reid data was used, reducing to 2.8 square metres if measured against the OS maps used by the Keeper. There was no change in the area of verge at 16.7 square metres. Mr Moir was of the view that OS data was not as accurate as the digital data taken from the site survey. Ordnance maps were mainly produced from aerial photographs which were not as accurate as a digital surveying.

[51] Production A55served to demonstrate what happened to the extent of the encroachment when production A54 was projected onto production R8, the registered OS plan showing the east part of East mains. In the blown up version, production A56,Mr Moir had sought to correct for the effects of distortion in copying and scanning.

[52] Digital surveying was far more accurate than OS mapping. The Massie Reid measurements had been taken physically, albeit a digital device had been used. Not so with OS mapping. Digital surveying was accurate to within 0.5mm. (Production R10 suggests an accuracy for different types of 1:2500 map of between plus or minus 0.7 metres to 1.9metres over distances of 100 metres at the 95% confidence level).

[53] Mr Moir then discussed Productions A57-A59 which were the equivalents of nos A42-A44 and A51-A53 using OS maps. The position was essentially unchanged. On A57, as in A51, there was encroachment onto plot 6 and into Forestry Commission land beyond the servitude area if the production A11/3 boundary was used, but not into the Forestry Commission land beyond the servitude area if the boundary from the registered title was used. In the case of productions A58 and A59, there was encroachment onto both plot 6 and Forestry Commission land beyond the servitude area.

[54] Productions A60 & A61 had been produced to demonstrate the difference between the extent of the three metre servitude area referred to in the text of the disposition by Mr McGibbon and Mrs Skea in favour of Inchmarlo against the area when calculated from the accompanying map, which extended to around 5 metres. This illustrated a difficulty with using 1:2500 maps, where the width of lines was material, for measuring small distances accurately. That scale was incapable of depicting accurately distances of three or five metres.

[55] As to the comparative effects of working from the land certificate, on one hand, and the Massie Reid survey, on the other, Mr Moir was of the view that there was no material difference in the extent of encroachment by the line of the realigned road. For plot 6 there was no difference. For Forestry Commission land there was a varying amount of encroachment beyond the servitude area depending on whether the Ramsay & Chalmers line or the land certificate line was taken.

[56] In cross-examination Mr Moir agreed that in production A57 there was no encroachment into additional Forestry Commission land. To the suggestion that at the north end of the Craigmyle plot the title stated 7.29 metres while a rough scaling suggested 7.65 metres, Mr Moir said that the two red lines on the plan related to physical features and did not replicate the deed.

[57] Mr Moir acknowledged that the constant in his various plans was a four metre wide carriageway with a two metre verge on either side and that he had not been instructed to apply narrower carriageways or verges.

[58] In re-examination Mr Moir confirmed that he had not encountered difficulties with the Massie Reid data. He had used it, for example, in relation to work at Aberdeen Airport and its accuracy had never been an issue.

Bruce David Murdoch (55)

[59] Mr Murdoch confirmed his professional qualifications. He had graduated with a BSc in Land Economics from Paisley College in 1982 and become an Associate of the Royal Institute of Chartered Surveyors in 1984. He had joined the partnership of Graham and Sibbald in 1996 having worked in their Inverness and Aberdeen offices. His experience covered a broad spectrum of domestic and commercial valuation matters, rent review, expert reports and commercial agency work. Most recently his mix of work had included domestic subjects but he was still mainly concerned with commercial property. He had, however, discussed this case with his colleagues specialising in domestic property. He identified production A19 as the report he had prepared. It contained the evidence that he proposed to give.

[60] He had originally been instructed in March 2010. The context was the dispute over the land in question and the Keeper’s admission of inaccuracy. He had been instructed to measure the Craigmyles’ loss as a result of that error. His valuation was to encompass two elements; the ransom situation and the value of the Craigmyle plot.

[61] He had been instructed to value these losses as at March 2007 and he had done so.

[62] The documents that he had relied on included productions A2, A3, A4, A14 and A16. The error was contained in Land Certificate KNC 15640. The Massie Reid drawing (productions A19/13 and A46) showed the extent of encroachment of the road onto the Craigmyles’ land. That drawing provided a better indication of the fact and extent of the encroachment than could be seen on a 1:2500 plan. Digital surveying was now the industry standard for the purpose of setting out such things. He had transposed the Massie Reid information onto a photograph of the road (production A19/17) for illustrative purposes. Perspective could be distorted in such an exercise and it was not an exact depiction but an aid.

[63] He had also had access to the more recent Goodson work (Production A19/15) which tended to corroborate Massie Reid’s work. He had no reason to doubt the result of their work and had adopted it as the basis of his own. As to planning material, he had considered the reserved matters approval (production A19/17) and had read material on the Aberdeenshire planning portal such as that at productions A27 and A35, but not A34.

[64] The planning conditions in the permission for a house on the Craigmyle plot (production A19/27) contained relatively standard conditions. Those at item 10 required visibility at the exit of the plot for 35 metres in both directions. These would have come from design standards but those aspects did not lie within his area of expertise. In his valuation of the Craigmyle plot he had assumed that the various conditions were capable of being met without recourse to third parties.

[65] The extent of the intrusion onto the carriageway of the road was about 1.28 metres (production A41). As he understood the position it was a requirement of the local authority that the carriageway had to be four metres wide with two metre verges.

[66] Asked as to the reference in his report to “special assumptions”, Mr Murdoch explained that while initially he had been of the view that the existence of a ransom strip was a reasonable assumption, as additional information had become available he had felt that the assumption had been validated. The validation came from the work done by Goodsons.

[67] It was a ransom strip only if the road could not be re-aligned so as to avoid Craigmyle land. As to that possibility, on the basis of Production A42 it was clear that the agreement of plot 6 would be required. He had been aware of the material concerning the servitude over Forestry Commission land; production A11/3 was the main document. He had also been provided with the e-mail from Mr McNab, production A19 Appendix 7. The first sentence indicated that the Forestry Commission could not release more land. He accepted that in the DV’s report, production A22 at 4.3, there was a suggestion to the contrary. Nevertheless the Commission would be bound to obtain best value in any further disposal of land. There were also power lines to the north that might constrain realignment. He was not at all clear that realignment was possible.

[68] Referring to production A36, a letter from Aberdeenshire Council to the Valuation Office, he felt that the alternative routes suggested were challenging and costly and likely to be unattractive to a developer. The blue route would take time and involve considerable construction costs and third party consents. The green route would involve one less third party but there was the power line to consider. He thought that against this background the developer’s approach would be to go for the line of least resistance, the existing red route and agree terms with the Craigmyles.

[69] Stokes v Cambridge was the usual starting point in the valuation of ransom strips. The percentage of the development value released that would be assigned to the party holding the ransom strip would depend on the amount of land-locking. If there was no alternative route then 50% might be achieved. Where there was an alternative the figure would be lower. Where there were a number of alternatives it would be lower still; in some reported cases it had gone as low as 15%. In this case he felt that 50% could not be justified. He thought that as there were potential, but very challenging, alternative routes 33% was the appropriate figure. The DV’s view expressed in Ms Paton’s report, production A22/7, (proposing 25%), was simply a case of another valuer being of a different opinion.

[70] The basis of the development value calculation was on an average serviced plot rate of £250,000 applied to the seven plots with £500,000 deducted to reflect the cost of servicing the sites. This included the developer’s profit element as identified and approved in Stokes. This agreed with Ms Paton’s calculation although hers was expressed a little differently. The uplift in value above existing use, otherwise known as “development gain”, was therefore £1.23 million of which a 33% share would be, say, £400,000.

[71] Production A20 was his commentary on Ms Paton’s report, production A22, and Mr Watson’s subsequent valuation, production R1.At para 2.9 of his report Mr Watson listed the documents on which he had relied. These appeared to have been assumed to be correct rather than checked. He did not agree with Mr Watson’s conclusion that there was no ransom strip. He thought that Mr Watson had relied on material that operated on a scale of 1:2500 whereas Goodsons’ plans were preferable. They were far more detailed and robust for the purpose of establishing whether there had been encroachment. To rely on fairly poor quality title plans, where a pencil stroke could represent two or three metres’ width, was not a good approach. Mr Watson did not appear to have seen the Goodson plans. It was not clear to what extent Mr Watson had taken account of the need for verges. The critical dimension was that at the pinch point rather than the surface area.

[72] As to the concept of a “frustration payment”, advanced by Mr Watson, it was not a term that he thought was used by the RICS but he did not dispute that such payments were made where there was no ransom strip. They resolved the “hassle factor” and allowed the path of least resistance to be followed. Mr Watson’s approach was based on his understanding that it would be possible to realign the road onto other land belonging to the developer. He was not contemplating the need for any third party involvement in such realignment. But once the road had been built the proprietors within the development would require to be reassured about continued access. The revised figure of £75,000 now proposed by Mr Watson (his report values the frustration payment at £50,000) might, the witness thought, range up to £100,000. To value it more precisely he would need detailed costings on the relocation of services, fees for road consents and the cost to the developer of such things as liaison with the owners of the seven houses accessed by the road. The key distinction between Mr Watson’s approach and Stokes v Cambridge was that the latter involved third parties.

[73] In cross-examination Mr Murdoch confirmed that he had not carried out a site survey and had relied on the Massie Reid and Goodson material. He had seen the various updated drawings. He had not measured the road at the point shown in production A17 and accepted that the extent of intrusion looked to be more than half way across the carriageway whereas measurements suggested that it was less than a third. He accepted that on one of the drawings showing realignment of the road the encroachment did not go beyond the existing limits of the Forestry Commission servitude but stressed that in all cases plot 6 was affected.

[74] In response to Mr Johnston’s suggestion that no great weight could be placed on what Mr McNab had to say about alternative routes, Mr Murdoch thought that while it might not be fact it was the opinion of the developer’s planning consultant. As to Miss Paton’s statement (in production A22/7) that recent correspondence had suggested that more land might have been available from the Forestry Commission, he did not know how recent the correspondence referred to had been but, even if correct, it still left a need for plot 6 land. Once plot 6 was sold the option of realigning the road was superseded.

[75] Mr Murdoch could not state that the power cable issue would definitely prevent realignment but his experience of power companies was of delay and cost. He did not know the terms of the power company’s wayleave.

[76] With regard to the alternative routes proposed by the Council in production A37, Mr Murdoch agreed that the tenor of the discussion was alternative routes as in the context of Stokes rather than re-engineering parts of the red route. He also confirmed his earlier evidence as to the degree of encroachment on the basis of the various scenarios in productions A51-A53 and A57-A59 covering both the original and revised Forestry Commission servitude boundaries

[77] Mr Murdoch confirmed that while initially he had been of the view that the existence of a ransom strip was merely a reasonable assumption, as additional information had become available he had come to believe that it was an assumption that had been validated.

[78] With regard toproduction R10,being an explanation of the accuracy and tolerances of the OS maps used in the Land Register, in response to a number of points made by Mr Johnston, Mr Murdoch felt that this lay outwith his area of expertise and that Mr Moir might be better placed to provide an answer. His comments re accuracy of maps had been in connection with the issue of reproduction where the width of a line was somewhat subjective and on enlargement at a scale of 1:2500 the width of a line could represent a metre or two. He accepted that Registers of Scotland used a common standard, the OS map.

[79] Mr Murdoch accepted that a number of features did not “line up exactly”, as Mr Johnston put it, but he did think that there was a measure of consistency and that there was nothing which affected his position critically.

[80] He agreed that the issue of a 25% or 33% share of development value was the only difference between the parties on the assumption that there was a ransom strip. The more parties there were in a ransom strip situation the weaker their positions and the more complicated negotiations were likely to be. In response to a question from the tribunal, however, Mr Murdoch agreed that it was possible for parties to get together to try and extract a better outcome from the developer than might otherwise arise. Were the road to be realigned there would be a need to agree with the owner of plot 6 and the Forestry Commission would be bound to achieve best value for their land, on top of which the cost of construction would have to be added.

[81] As to the suggestion that a narrower road than four metres might be possible, he doubted that consent would be given to such a proposal. He accepted that in the Highlands there were narrow roads with passing places but it was a big assumption that a road of less than four metres with two metre verges would be allowed here.

[82] In connection with the plan associated with production A11, the March 2003 letter from Messrs Ledingham Chalmers to Forest Enterprise about the servitude to be granted in favour of Inchmarlo, Mr Murdoch agreed that it was the plan in the Register that determined the extent of that right rather than this letter and the drawings enclosed with it.

[83] In answer to a number of questions from the tribunal the witness firstly confirmed that he had addressed matters as at the date given in his instructions, March 2007. It was possible that the proprietors whose land was needed might come together to form an alliance to get the best deal out of the developer. This could apply whether one was talking about the alternative routes suggested by Aberdeenshire Council or about a more localised alliance comprising the proprietors of plot 6, the Forestry Commission and the Craigmyles. In Mr Murdoch’s view, ranking the various possibilities from the point of view of the developer’s preference, acquiring the Craigmyle land would be the easiest solution, failing which acquiring land from number 6 and the Forestry Commission, failing which the alternative routes to north and south. As to the possibility of the road being narrowed so as to avoid Craigmyle land, people who had bought their houses with a four metre wide access road would be disappointed if they had to accept something less.

[84] In re-examination Mr Murdoch doubted that Mr McNab would have said something to the Council that was not his client’s view. As regards Ms Paton’s comments at Production A22/7, he had no knowledge of the other correspondence to which reference was made.

[85] He thought that a narrower road may be permitted to service one or two houses but not seven houses where there would be a good number of cars. As to relaxation of sight lines, he felt that the design standards would usually apply. If the developer adhered to the standards, road consent was likely to be forthcoming. To depart from them was risky.

Iain Kelly (61)

[86] Mr Kelly, a member of the Royal Town Planning Institute, gave evidence that he was Head of Planning for Graham & Sibbald based in Perth. He had 38 years of experience in planning. He had worked in all areas of statutory planning in both the public and private sectors. He had worked variously in project management, on Ministry of Defence sites, in nuclear work where special clearance was required and had spent eight years in management roles in Scandinavia.

[87] He identified production A24 as his report. Its context was set out in the two questions posed to him by Brodies, who had instructed the report, at paragraph 4; whether “the road could be realigned through land wholly owned by the developer while still meeting the appropriate planning guidelines” and, if not, “to what extent the road could be realigned through any third party’s land to avoid encroaching on our client’s land while still meeting the appropriate planning requirements”.

[88] In order to inform himself he had interrogated the Council’s planning portal, including the material in productions A27-A32, and reviewed the planning policies in force in 2007. The history of the applications was not free from controversy and objection. He had also looked at the planning permissions for Nos 6, 7 and 8 East Mains. He had also considered the titles forming productions A1-A4 and the work done by Goodsons, productions A42-A44.

[89] Having considered this material against a requirement for a four metre carriageway with two metre verges he could not see any alignment that did not require third party land.

[90] Paragraph 13 of his report related to productions A25 and A26, Mr McNab’s e-mails, from which he drew the conclusion that the developers knew that they had a problem. Reading these documents suggested that they could not move the road north. He had seen nothing more recently to suggest otherwise. The road would require to be built to adoptable standards even if it were realigned. Realignment might also affect the planning position in relation to the housing plots as there was a requirement in the Local Plan that 66% of such plots “remain unbuilt”. Realignment of the road such that it encroached on any of the plots could, therefore, result in a smaller house having to be built on the affected plots.

[91] As to the possibility of relaxation of standards, while relaxations were always possible, they were rare and for specific purposes, such as dealing with issues arising in conservation areas. In all cases there would need to be detailed engineering drawings allowing the full implications to be considered before a view was taken by the Roads Engineer. As regards the process, Mr Kelly thought that it might be a matter for the Head of Service or the Chair of Planning rather than a Committee. It was likely to be considered on a case-by-case basis with the principal consideration being safety. Pinch points tended to give rise to complications, so, on the face of things, a four metre carriageway was likely to continue to be the requirement.

[92] Looking to the alternative routes in green and blue on production A36/3, Mr Kelly agreed with the last paragraph of A36/1; the alternative routes were convoluted. The green route was long and would involve dead cost in that there was no frontage development along the way. Mere marking of the route did not constitute an engineered solution. Overall Mr Kelly thought that the letter was very clear in its terms. So far as the need for verges was concerned these were needed for services and to allow for drainage.

[93] Mr Kelly’s conclusion at paragraph 37 of his report was to the effect that realignment was not possible without access to third party land if the necessary adoptable standards were to be maintained. In arriving at that conclusion he had taken account of all of the Goodson drawings. Standards looked to two things; safety and durability for maintenance purposes. He felt that an engineer would not want to vary the standard of building in such a way as would affect maintenance in the future; the focus would be on the safety of all road users. Visibility standards in general use were such as those specified in the planning permission for the Craigmyle plot, production A19/27. The use of 35 metres sight lines could in some cases increase to 100 metres but 35 was the usual standard. There was some variation between Councils.

[94] In cross-examination Mr Kelly indicated that he had not examined whether 35 metres each way was actually possible in respect of the Craigmyle plot. He agreed that realignment was primarily an engineering matter and that he was a planner rather than an engineer. That was why he had stressed the need for full engineering drawings.

[95] As regards the requirements for space arising out of the obligation to build a dyke, he accepted that whether the obligation was enforceable was a matter of law. He also agreed that verges were not always two metres wide but, while there might be scope for variation, this was usually for a planning purpose.

[96] In relation to Mr McNab’s e-mails he considered that Mr McNab, acting as a consultant, was simply stating the facts rather than advocating a case; the push was to gain approval. Mr Kelly could not recall having seen any formal intimation of refusal of additional land by the Forestry Commission. As regards the apparent variation of the road line mentioned in production A38, Mr Kelly thought that it related to coming from the west to the land in question; as to whether it included the disputed land, he had not seen the relevant plan.

[97] So far as production A36 was concerned, it was put to the witness that what was in fact being discussed in that letter was the possible use of alternative routes rather than the realignment of the existing red route. He acknowledged that relaxation of road standards was not expressly mentioned but felt that the letter gave proper consideration to the issues around the red route once plot 6 was sold and concluded that realignment would not then have been possible without additional land.

[98] Mr Kelly acknowledged that his conclusions were based on Goodsons’ drawings and a four metre carriageway with two metre verges. He remained of the view that variations were rare. Asked whether a reasonable Roads Engineer would consider a relaxation in the present circumstances, Mr Kelly said that he had never encountered a variation being granted simply to help a developer out of a problem.

[99] Asked by the tribunal whether the planning issues raised by a realignment might involve a process whereby the public and householders were permitted to make representations, Mr Kelly thought it might.

[100] In re-examination Mr Kelly confirmed that he would not expect to see a relaxation given simply to save a developer money; in his experience they were granted only for planning purposes.

Alan Robert Mitchell (57)

[101] Mr Mitchell advised that he holds a BSc in engineering and currently occupies the post of Engineer in the Infrastructure Services department of Aberdeenshire Council where he has worked since 1984. His current duties include commenting on roads matters for planning purposes and granting roads consents on behalf of the authority.

[102] Turning first to the road bond correspondence, production A38, where he had been Messrs Ramsay & Chalmers’s contact, Mr Mitchell confirmed that a bond for £150,000 had been put in place. There had been a release under paragraphs 2.2 and 2.3 of 50% but a release to 20% had not yet been applied for under 2.4 and the road was not yet adopted.

[103] Mr Mitchell was then asked if he could explain the reference, in production A32, dealing with the planning permission for plots 6, 7 and 8, to “Changes to the plot boundaries [having] been brought about by a change in the alignment of the access road, which was approved in February 2004”. He indicated that this appeared to relate to a planning application which would need a change in the road consent. In 2004 his department had received a plan which was an amended version of one submitted in 2003. Production R11/1 showed the original position and 11/2 the 2004 amendment. The latter was an acceptable layout. He was not certain if this amendment had been approved. If not, it could be approved retrospectively. As he understood the position it was the 2004 layout that was constructed. He thought that the 2004 plan moved the road north by about 1-1.5 metres. He could tell this from the positioning of the gullies which changed sides of the road in the area of the former railway line. In the e-mails from Mr McNab, production A26, Mr Mitchell thought that the references to the tree were consistent with the content of the plan at R11/2. He added that a tree in the line of a road would be assumed to be one that was to be cut down.

[104] On the issue of “Standards” Mr Mitchell explained that there had been various versions over time. They could run to hundreds of pages. In 2003 the operative 1997 set had had two categories. One was for roads serving small numbers of housesin a cul-de-sac which could be served by an access road with a carriageway four metres wide. If it met the construction standards and curvature and sightline requirements the road would be granted consent. In the planning permission for the Craigmyle plot, condition 10 of production A19/29 related to taking access from the plot onto the road. One could see 35 metres to the west but whether one could see 35 metres to the east was more dubious and depended on the ground on the inside of the bend being kept clear. The standard had since changed to 25 metres in each direction as a result of studies of modern braking capability. The reference to 33 metres in the 2003 planning permission was a requirement of Road Construction Consent standards, not planning standards, for which 35 metres was the requirement.

[105] Production A36, a letter from Aberdeenshire Council to the Valuation Office dated January 2011, had been signed by his colleague, Alasdair Macdonald, who had been had been the senior official in the Roads Development Office in Stonehaven at that time. Mr Macdonald had retired in September 2015. (Although signed by Mr Macdonald, it became apparent in the evidence that this letter had in fact been written by Mr Jim Craig, whose name appears in the heading and whose views the letter is understood to represent. He too has now retired.) The first paragraph accorded with Mr Mitchell’s own view of the standards at the time. The road leading through the development from the public road widened to 5 metres for passing purposes at points. He also agreed with the second paragraph describing the road in the area of the Craigmyle plot.

[106] Asked about the last paragraph on the first page of A36/1, Mr Mitchell thought that it was not dealing with the red route but rather looking at alternative routes. What the letter was saying in relation to plot 6 was that once it was built it would not be possible to re-route the road through that plot. He thought that it would still be possible to make some changes; it was a matter of terminology. To a colleague realignment could mean a slight change whereas the public might think that the term meant something significant. If the green and blue routes were left out of account Mr Mitchell thought that, if one knew where the various property boundaries were, it might still be possible “to weave [the red route] through” so as to avoid Craigmyle land.

[107] Asked to what extent the width of the road might be permitted to be varied, Mr Mitchell opined that a carriageway of 3.5 metres and verges of one metre might be permitted at a pinch point. The sorts of consideration applying would include the fact that, if services were less numerous, less space would be needed in the verges. This might apply cases where there was no mains gas or cable television. If an application had been made to him for a 3.5 metre carriageway with one metre verges he would have considered it. Asked over what distance, he assumed it would be over the width of the former railway line, say 10 metres. He thought he might well have approved such an application. Width restriction over even longer distances might be possible; forward visibility was the main issue, together with passing opportunities, traffic levels and the needs of some specific types of vehicles, such as snow ploughs, which required 3.5 metres. Asked if this would be a relaxation of the standards, Mr Mitchell stated that at the time the 1997 arrangements were termed “Guidelines” rather than “Standards”. “Standards” had been adopted because the term “Guidelines” suggested too much flexibility.

[108] As to the suggestion from Mr Kelly that relaxations arose for planning reasons rather than to assist a developer, Mr Mitchell said that applicants for consent to narrow a road didn’t have to give reasons. He thought that the developer could have tried to avoid Craigmyle land. He would have wanted narrowing kept to a minimum and visibility would have been the main issue. He thought 10 metres was about the maximum distance over which road narrowing permission would have been granted but agreed with Mr Johnston that up to 15 metres might be allowed for good reason.

[109] It was possible that an application for such permission would give rise to a planning issue. In that event the matter would likely be dealt with by officials. Any member of the public objecting would have to show that the change was contrary to the Standards.

[110] In answer to questions from the tribunal as to when an application for road narrowing permission could be entertained by the local authority, Mr Mitchell said it could be before or during the development and indeed at any stage while the road remained unadopted. Such an application would be dealt with by officials, not councillors.

[111] In cross-examination Mr Mitchell confirmed that over the period 2003 – 2007 he had not dealt with Banchory for planning purposes but had for road consents; he had shared the work with Mr Craig. He confirmed that in the drawings forming productions A42-A44 the re-routed road entered both plot 6 and Forestry Commission ground beyond the servitude area.

[112] The 1997 Guidelines had changed in 2004 and there was now yet another set (of Standards) in force. He confirmed that one verge of the road was for services, the other a swale, a depression to allow drainage. As to the possibility that this was an up-market development having a greater number of services he thought that there was no mains gas or street lighting in this area. Were the width of the carriageway to be reduced, it would be necessary to provide passing places that were visible one from another and land might be required adjacent to houses to create those, though he thought that plots could have been designed around these requirements when the development was being planned. Now that it was built, agreement would be needed to insert passing places into plots. Mr Mitchell agreed that, as Mr Craig had indicated, with a four metre carriageway with two metre verges the road could not be re-aligned without plot 6 and that the same principle applied to plot 7.

[113] Asked if his evidence was based on the idea that the realignment took place before houses were sold, Mr Mitchell replied that his department did not know the ownership details. If approval was granted and the developer was then unable to build the road, the authority would not know that that was the position.

[114] So far as condition 10 of the Craigmyle plot planning permission was concerned, Mr Mitchell agreed that this was not a problem as it was an example of the norm with no need to vary. He also agreed that in contemplating variation it was necessary to be able to see children and others: that was the point of the 33 metre visibility requirement. Mr Mitchell agreed that variations were uncommon at the current time but in the early 2000s much more variation had been allowed. He agreed that due to safety considerations the party seeking a variation had to make a good case.

[115] Asked whether such matters would be decided on issues such as planning or safety grounds rather than getting a developer out of a commercial hole, Mr Mitchell indicated that if permission would have been granted had what was contemplated been part of the original planning application, then it would also be granted as a relaxation at a later stage. Pressed as to how a developer could make a good case if the only issue was money, Mr Mitchell said that if the engineers for the applicant could put forward an alternative that was equally safe or safe enough to meet the Guidelines then the authority could not insist on the best solution; they would have to accept any solution which met the Guidelines. He agreed that the application would need to be accompanied by detailed engineering drawings for the entire road.

[116] On the basis of a reduced width over a length of 10-15 metres, it was put to Mr Mitchell that this still encroached on plot 6. He agreed that that was so now but that if it had been advanced for permission at the outset it might have been available, otherwise the developer would be applying for something that he could not build. But it couldn’t be done now. He agreed with Mr Howie that his evidence was about the situation before the plots of land had been sold off.

[117] Returning to production A36, Mr Howie suggested that it was clear that Mr Craig had thought about the red route and had ruled out realignment once plot 6 was sold. Mr Mitchell agreed but said that at that time plot 7 had not been sold so it might still have been possible. Mr Mitchell agreed with the suggestion that this was simply speculation as to what land had been available at the time. The availability of land was the crux of the matter.

[118] In re-examination, asked whether it would be possible to avoid the Craigmyle plot and plot 6 with a 3.5 metre carriageway and one metre verges, he indicated that he would require a scale rule (which he did not have to hand) but said that that it might be possible. In answer to the tribunal, he did not think the works necessary to carry out such a realignment would necessitate temporary encroachment onto plot 6.

Alastair Clark Watson (55)

[119] Mr Watson outlined his career of 33 years in the Valuation Office in various parts of Scotland including a period as DV for the North of Scotland. His current role was as a Principal Surveyor leading a team dealing with health properties including disposal of NHS assets across Scotland, compulsory acquisition of land to do with the A96 and A9, flood management schemes and land law reform work.

[120] His report was production R1. He would be giving his opinion on the existence of a ransom strip and the question of what payment was due to the appellants for the substantive part of their claim. He was aware that the claim in respect of the Craigmyle plot had been withdrawn and that the claim was now for a sum of £400,000.

[121] The earlier Valuation Office report provided by Ms Paton, production 22, was familiar to him; he had discussed it with Ms Paton and the Chief Valuer, Mr Rintoul. It had been prepared on the basis that there was a ransom strip; the circumstances had been assumed to be as set out in Mr Murdoch’s report and the only issue was the sum that was appropriate on those assumptions. New information had now been provided to the effect that the former railway land to the north of the Craigmyle plot and the area covered by the Forestry Commission servitude would be sufficient to allow the road to be re-engineered to avoid Craigmyle land. At the time of the earlier report it had not been known that the former railway ground, which on the date of the inspection had been part of the garden of plot 6, was at the relevant valuation date, March 2007, in the ownership of the developer and had only become part of plot 6 in 2010. This could be seen from production A9. In light of these changes the earlier report was no longer relevant and the conclusion that Mr Watson had reached for the purposes of his report was that there was no ransom strip.

[122] Mr Watson was taken through the various deeds and plans that had been provided to him and used in reaching his conclusion. His advice was dependent on them being accurate otherwise his valuation could be affected. He felt that the material that mattered was what was in the title plans. The actual size of the inaccuracy had to be considered in the light of the tolerances of the base scale of the OS map. The triangular area of intrusion onto the carriageway, which he had calculated as extending to 3.5 square metres on a scale of 1:1250 could not be said to be exact. However, where ransom strips were involved the area was irrelevant. He acknowledged that his report indicated that he was following the Keeper’s advice that there was a one metre intrusion into the carriageway, whereas Mr Murdoch said 1.2 metres. It remained his conclusion that it would be possible to reposition the road a small distance to the north to avoid the road being on Craigmyle land.

[123] As regards production A19/13, the Massie Reid plan showing the intrusion, Mr Watson confirmed that he had seen it and was aware of how it had been generated and also of the subsequent reduction in the extent of the affected area from Mr Murdoch’s original 8.4 square metres to 5.8 square metres, explained at para 4.3 of Mr Murdoch’s report (production 19). While he accepted that digital measurement might be more accurate, it was the title plan to which one had to have regard; it was the reference plan. For these purposes one was not entitled to look at any other. Asked to comment on Mr Murdoch’s view that only very limited mitigation measures were possible, in the way of avoiding a ransom strip, Mr Watson pointed out that the plans at A42-A44 all assumed a four metre carriageway with two metre verges. That seemed to him to be a special assumption but it was unfounded: his own enquiries suggested there was potential for a re-engineered solution.

[124] On the assumption that there was a ransom strip, Mr Watson agreed that Stokes laid down the proper approach. There the starting point had been a share of 50% of the development gain if there was no alternative access. However he took exception to Mr Murdoch’s application of 33% in this case because he felt that this lacked a “stand back and look” stage. It was somewhat academic and in his experience of cases in which he had been involved on Loch Ness-side and in Alexandria and Fort William, he considered that a 25% share was more appropriate. He did not disagree that public bodies had to achieve best value.

[125] As to the suggestion that if the road was narrowed the value of the houses in the development might be affected, Mr Watson thought that without knowing the details it was not relevant. He did not think that it had further implication for costs.

[126] Despite having concluded that there was no ransom strip, Mr Watson was of the clear view that a payment, which he called a “frustration payment”, was appropriate in the circumstances. This was because he considered that the developer would be prepared to pay a sum to achieve an agreement that the road could remain “as built”. In arriving at his figure he had taken account of realignment costs, professional fees and fees for submitting planning applications as a starting point. This amounted to £30,000 but he had been prepared to go as high as £50,000 as the figure that would be arrived at in a negotiated settlement. However on checking his material he had found some cost elements missing and was of the view that this required to be corrected and had advised his clients that the figure for the frustration payment should be increased to £75,000. This was, he believed, the correct figure which, after a “stand back and look” and with a degree of enhancement to secure settlement, would be agreed between the parties.

[127] In cross-examination Mr Watson was asked why in relation to a planning application to narrow the road an owner of, say, plot No 15 would let the matter pass. He said it was because it was a short section of rural road and he couldn’t see any particular reason for concern; it did not increase traffic. Asked whether house owners would think that they were getting something less than they had bargained for, he thought that a slowing of traffic might be welcome.

[128] In response to the suggestion that the negotiating position of the developer was weakened because of the length of the alternative blue and green accesses on A36, Mr Watson accepted that without knowledge of the costs involved the position was uncertain. Negotiation was a dark art.

[129] He confirmed that he had concluded that there was no ransom strip having considered the advice of the Keeper, the information on ownership in the appendices to his report and the enquiries made of the local authority as to a different route. Asked if he was saying that, even though Goodsons’ measurements were more accurate, because the Register uses OS maps these must be used and that this was a black and white issue, Mr Watson said that if digital plans were accepted in this case the implications for the Registers of Scotland would be significant; you would see Goodson surveyors up and down the land checking dimensions against title deeds. He did not question the accuracy of their plans but one had to work from the title plans and bear in mind that the requirement for a four metre carriageway with two metre verges was not set in stone. As to the suggestion that Goodsons’ assumptions represented the norm, Mr Watson said that variations were commonplace and would not be special or unique to this location. He had formed a professional view on the basis of information from relevant experts in the field.

[130] Mr Watson also confirmed that he had allowed no additional value for the verge area lying on Craigmyle land beyond the red triangle. He considered that a relocated road with a narrower carriageway and verge could all be located on the developer’s land.

Submissions

For the appellants

[131] Mr Howie favoured us with very full submissions on the the nature and extent of the respondent’s liability under sec 12 of the 1979 Act but since these matters are not now disputed we need not narrate them. Suffice to say that his position was that the respondent was liable to indemnify the appellants not only for the value of the land lost by reason of the refusal to rectify the Register but for consequential financial loss in addition.

[132] The bulk of the evidence led had been to do with the value of the land. All of the witnesses had been both credible and reliable. The tribunal may think some of Mr Craigmyle’s views to be rather pronounced but that was perhaps understandable given the lengthy history of this matter and the strain it had undoubtedly put on him and his parents. Messrs Moir, Murdoch and Watson had been notably measured and sound witnesses. But none of the witnesses had given cause to doubt his credibility or reliability. Mr Mitchell’s evidence was often conjectural and concerned with possibilities rather than with what was likely to have happened but that arose out of the fact that he had not had any previous direct involvement with the access road. No criticism of him was intended. On the contrary, it was accepted that his position with Aberdeenshire Council and his experience in these matters qualified him to give evidence of the kind he did and he had given it in a credible and straightforward way.

[133] Mr Howie then dealt with the extent of the land lost. It was as shown in the Goodsons’ drawing A41 of process, spoken to by Mr Moir in evidence. It extended to at least 5.8 square metres and projected into the access road by 1.280 metres at its furthest. That drawing was based on the earlier work of Messrs Massie Reid whose work had been checked on the ground by Mr Moir. He had found it to be very accurate and where his result differed from theirs that was because he had measured from the landmarks least advantageous to the appellants. So his assessment of the extent of land lost was conservative. Digital surveying was very accurate and there was, Mr Howie submitted, agreement among the experts that its accuracy far exceeded that of OS maps.

[134] Contrary to the respondent’s contention, the tolerances of the OS material produced had no relevance to the amount of land which the appellants had lost or the amount of the indemnity they ought to receive. The “state guarantee” provided by sec 12 did not depend on fault on the part of the Keeper in mapping the erroneous Land Register entry. The tribunal should use the best evidence available to it and that was the Goodson drawings.

[135] These drawings were the starting plan for determining whether the triangle was a ransom strip. They showed that realignment of the road to avoid Craigmyle land would require it to be moved 3.280 metres to the north at the furthermost point of projection of the triangle into the carriageway, resulting in encroachment upon both plot 6 and Forestry Commission land beyond the extent of the servitude held by the developer if Aberdeenshire Council’s standards for such a road were to be adhered to. All but one of the various scenarios for which Massie Reid and Goodsons had prepared drawings showed that to be the case and the one exception related only to the Forestry Commission land. On all of these scenarios encroachment on plot 6 was necessary and by March 2007 plot 6 had been sold. In this respect the evidence of Mr Watson was wrong in so far as he had said that the acquisition of an area of additional ground by the owners of plot 6 in 2010 had caused Ms Paton to err in her initial DV valuation. However, said Mr Howie, Ms Paton had made no mistake. The encroachment shown on the various drawings included encroachment onto plot 6 as it was in March 2007. The correctness of her view was confirmed by the letter from Aberdeenshire Council to Ms Paton in January 2011 (production A 36) stating that “once the house on plot 6 had been built and sold realigning the road would not have been possible without taking access to part of that plot in addition to Forestry land to the east”.

[136] While the respondent had not pleaded such as case, she had sought to avoid the consequences of the Goodson Associates’ drawings by arguing that there was at least a possibility that a relaxation of standards would have been allowed by Aberdeenshire Council such as to permit a carriageway of 3.5 metres in width with one metre verges. In Mr Howie’s submission the burden of the evidence was to the opposite effect. Mr Mitchell’s evidence had been largely conjecture and too speculative to be preferred to that of Mr Kelly, Mr Murdoch and the view expressed by Mr Craig in production 36 (quoted above). Mr Mitchell thought that a relaxation might have been granted but “might have” was something of a leitmotiv of his evidence. Indeed, in fairness, it would have been impossible for Mr Mitchell to be firmer in his view without having seen a detailed and formulated proposal for the realignment of the road. The Standards applicable at the time were the norm for a situation like this. They existed for a reason. Therefore there had to be a good reason for departing from them. Mr Mitchell seemed to acknowledge as much (at least in parts of his evidence). There was no good planning or engineering benefit to be had from a relaxation here. Viewing his evidence against these factors, there was, thought Mr Howie, an inclination on Mr Mitchell’s part to over-estimate the prospects of a relaxation. In summary, the notion that a relaxation might be granted sufficient to allow the road to by-pass the red triangle and avoid encroachment onto other third party land, thus escaping the ransom strip, was too speculative for us to rely on it. The result was that the red triangle was a ransom strip.

[137] As to valuation, as a ransom strip, there was little in dispute between the parties. They had both used Stokes v Cambridge Corporation methodology. Their assessment of “development gain” pretty much tallied at £1,200,000. The only difference between them was the fraction of that which was to be attributable to access. Ms Paton thought one-quarter, Mr Murdoch the conventional one-third. We should prefer Mr Murdoch. Ms Paton’s view was based on the existence of other alternative access routes. However, on Mr Murdoch’s evidence, the conventional third already allowed for the existence of alternative routes. Where there was no alternative the proportion payable as ransom would be a one-half. Where many alternatives existed the percentage could come down below one-third. In the present case the blue and green routes shown on production A36/3 were not realistic candidates as routes justifying a reduction from one-third to one-quarter. We should therefore give effect to Mr Murdoch’s one-third and value the land lost at £400,000, as he had done in production A19.

[138] If we concluded that the red triangle was not a ransom strip, the logic of Mr Watson’s “frustration payment” approach was accepted by the appellants and they were happy to leave it to the tribunal to decide where, in the range £75,000 to £100,000 the award should fall.

[139] Mr Howie then dealt with the appellants’ sec 13 claim for reimbursement. Again his submissions covered the law fully but since none of this is now in dispute we need not repeat them.

For the Respondent

[140] Mr Johnston’s submissions were tightly focused on value to be ascribed to the triangle and – a much shorter section – expenses.

[141] It was accepted that the appellants had valid claims under both sec 12 and sec 13 of the Act. As part of that, it was accepted that the Land Register was inaccurate in terms of Land Certificate KNC15640 and its inclusion of the red triangle. It was accepted that application for rectification had been made and refused as impossible due to prejudice to other proprietors in possession. It was accepted that the appellants had suffered loss as a result and that that that loss fell to be quantified as at March 2007.

[142] As to the witnesses, Mr Kelly was the only one of whom criticism was made. Mr Craigmyle was expressly accepted as both credible and reliable, Mr Moir’s evidence was accepted in its entirety and his expertise was not questioned, nor was that of Mr Murdoch and for the most part no issue was taken with his evidence.

[143] The charge against Mr Kelly was that his evidence had been given in a spirit of advocacy rather than dispassionate expert assistance. It was also flawed in that it was based on the assumption that the real burden requiring the construction of a wall along the south verge was a ‘determining issue’, whereas that burden was unenforceable as a matter of law, since the land did not belong to those purporting to create the burden. It was also inconsistent with the other evidence which we should accept, notably the evidence of Mr Mitchell, whom we should accept as a credible and reliable witness who had given dispassionate and disinterested evidence. The evidence of Mr Watson was, likewise, beyond criticism.

[144] On the central issue, the red triangle was not a ransom strip because the road could have been realigned so as to avoid it. The key facts were (i) that until 1 June 2010 the land falling within titles KNC15640 and KNC15641 were in the ownership of the developer and (ii) that the developer had a servitude right entitling him to construct a road sufficient to allow realignment of the road to the north. (As we understood Mr Johnston’s submissions he was not saying that those facts alone provided a complete answer to the appellants’ claim; they merely represented the relevant land ownership as at March 2007.) The question was whether realignment of the road could be accommodated within these boundaries.

[145] In answering that, the first issue to be decided was which map or plan should be used in order to identify the triangle, the existing road and the scope for realignment. The choice was between the digital survey done by Massie Reid and Goodson Associates’ subsequent drawings, on the one hand, and OS maps on a scale of 1:2500, on the other. There was no dispute that the former were more accurate but we should, nevertheless, prefer the latter because the entire system of land registration was based on OS maps: secs 4(2)(a), 6(1) and 12(3)(d) of the 1979 Act defined what the Keeper must not accept for registration, the information a title sheet had to contain and the limits of the Keeper’s indemnity in relation to the Ordnance Map. Here there was no dispute that the inaccuracy in question could be identified on the Ordnance Map but, since sec 12(3)(d) provided that whether there was an inaccuracy in a title was to be determined by the OS map, it made little sense to employ an entirely different means of measuring the extent of any inaccuracy. Moreover there was what we shall call a “floodgates” argument: Mr Watson had warned that if digital plans were accepted Goodson Associates would be checking OS title sheets the length and breadth of the land.

[146] As to the extent of the servitude right over Forestry Commission land, the correct measure thereof was the deed itself, not the drawing attached to production A11. By reference to that deed and its associated plan Mr Watson had given evidence that realignment of the road would not need to encroach on land beyond the extent of the servitude. Certain of the drawings produced by Goodsons in relation to this deed and plan, productions 51 and 57, confirmed this and even on the drawings showing encroachment, for example production 42, the extent was minimal. All of this was based on a road of the dimensions for which developer held road consent. So far as the Forestry Commission land was concerned, such a road could be accommodated within the extent of the servitude.

[147] But it was the respondent’s position that the road need not be of these dimensions. (This proposition appears to be directed at the plot 6 problem but Mr Johnston’s submissions fell short of an admission that encroachment on plot 6 could only be avoided by narrowing the road.) The critical evidence was that of Mr Mitchell, whose evidence was to be preferred to that of Mr Kelly for the reasons already given in relation to Mr Kelly and also because, as an official who dealt with such matters, he was far better placed to comment on them than Mr Kelly. He had explained that Road Construction Consents were frequently amended. There had been an amendment in the present case. Applications for amendment were dealt with by officials and their only concern was to compare the application with current guidelines. Mr Mitchell himself had in fact been involved in the grant of the original Road Construction Consent in this case (production A38) and he saw no reason why a reduction to a road width of 3.5 metres with one metre verges should not have been granted over a distance of 10 metres or greater if there was sufficient visibility for oncoming drivers to see each other and stop. In this rural location the services which needed to be accommodated in the verge were limited; no mains gas nor street lighting.

[148] Mr Mitchell had also given evidence that the roads authority was not concerned with the developer’s reasons for wanting a relaxation. If the relaxation was for something which would have been granted had it been in the original application for consent, it would be granted. The roads authority’s sole concern was conformity with current guidelines, thereby protecting public safety and upholding maintenance standards. He, as a Roads Engineer, could not insist on the best solution every time; if the solution met the guidelines, that was an end of it.

[149] In Mr Johnston’s submission no cogent reason had been shown why the road could not be realigned to the north. Infrastructure would not be problem; it had not been shown that the utility wayleaves would prevent it; there was some evidence that, despite what had been said in the emails at productions A25 and A26, additional Forestry Commission land may have become available (production A22, para 4.3); and only limited weight should be placed on the statement by Mr Craig of Aberdeenshire Council in his letter of 19 January 2011, production 36, that once plot 6 had been sold realigning the road would not have been possible without taking access to part of the land and to Forestry land to the east.

[150] No significance should be attached to the absence of engineering drawings showing how this could be done. That was not relevant. The exercise the tribunal was engaged in was a hypothetical one and its purpose was to identify whether in March 2007 the triangle constituted a ransom strip.

[151] In so far as the appellants’ argument about limited scope for realignment of the road rested upon the real burden for the construction of a dyke along the south verge of the access road, that burden was unenforceable by virtue of the fact that the land over which Mr McGibbon and Mrs Skea had purported to grant a servitude and impose this burden was not theirs.

[152] The correct conclusion from the relevant evidence was that a realigned road of 3.5 metre width with one metre verges would have been possible and adoptable without encroachment on plot 6 and within the limits of the Forestry Commission servitude. Moreover and in any event, in all of this the relevant map was the OS map and its tolerance meant that it was not possible to conclude that a four metre road with two metre verges would necessarily on encroach on third party land. The correct conclusion was that on the whole matter the status of the triangle as a ransom strip had not been established.

[153] If we came to the contrary conclusion, however, the only difference between the parties as to valuation was the percentage to be applied; 33% or 25%. That depended on assessment of what alternative access routes were available. The options were the green and blue routes shown on production 36/3 and realignment of the existing route. Given the plurality of alternatives, Mr Watson’s 25% share was to be preferred. Mr Murdoch’s 33%.

[154] If we held that the triangle was not a ransom strip, Mr Watson’s approach to valuation should be applied. That would be what a developer would be willing to pay in order to avoid the need to realign the road. Beyond a certain point it would be more economical for the developer to realign the road. Mr Watson’s £75,000 was the appropriate figure. It included an element of enhancement based on his experience of how people acted in that sort of situation. Mr Murdoch’s upward push towards £100,000 had not been explained or justified and really amounted to a concession that £75,000 was not unreasonable: as Mr Watson had put it “It sounds like £75,000”. It was the appropriate amount for us to award as indemnity under sec 12.

[155] As to sec 13(1), liability for reimbursement of expenditure reasonably and properly incurred was accepted and the figures set out in production A62 were accepted under deduction of items 1, 2, 3, 8, 11 and 13 of the schedule.

Tribunal’s Consideration

Assessment of the witnesses

[156] We found all of the witnesses to be both credible and reliable. There is, in any event, not much in the way of factual dispute between the parties and differences in evidence were largely ones of professional opinion. We should, however, comment specifically on two of the witnesses.

[157] Mr Howie thought we might find Mr Craigmyle rather “pronounced” in some of his views and suggested a reason for that. It had to do with the stone-walling (not Mr Howie’s phrase) he had met from the respondent over the course of many years as he sought to uncover the truth of what had happened. In our opinion Mr Carmyle could have been forgiven for being a good deal more pronounced on these matters than he was, given the almost endless obstructions and difficulties he had encountered in bringing matters to where they are today, by no means all of them narrated above. As it was, we found Mr Craigmyle not only a credible and reliable witness but an impressive one. That is because of the skill and persistence with which he has pursued this matter despite every obstacle put in his way and the measured, fair and scrupulously accurate way in which he gave his evidence at the end of that process.

[158] The other witness on which we should comment is Mr Kelly. That is to respond to Mr Johnston’s criticism that he gave his evidence in a spirit of advocacy and not in the objective, disinterested way an expert should. That is not how we saw Mr Kelly. Neither in the content of his evidence nor in the manner in which it was given do we detect any trace of that. We do accept Mr Johnston’s criticism of Mr Kelly’s report and will say more about that in due course. But the problem with his report does not affect the rest of his evidence. In his oral evidence he was prepared to engage with all questions put to him without any sense, on our part, that he was casting about for the answer that best suited the appellants. The weight to be attached to his evidence in comparison with that of Mr Mitchell is, of course, a matter for fair comment on Mr Johnston’s part and we deal with that below but we reject the criticism of him as a witness.

Was the triangle a ransom strip?

[159] The first thing we have to consider is which maps and drawings we should be using for this purpose. Two things seem clear enough. First, that the starting point has to be the OS maps. Whether the respondent is under a duty to indemnify at all depends on the error being rectifiable by reference to the OS map; sec 12(3)(d) of the 1979 Act. Secondly, everyone is agreed that digital surveying is significantly more accurate than OS mapping.

[160] So far as the duty to indemnify in this case is concerned, it is not in dispute that the terms of sec 12(3)(d) are satisfied: the inaccuracy can be identified on the OS map and can therefore be rectified by reference to it.

[161] However, in our opinion it does not follow that OS maps require to be used for the purpose of measuring and defining the extent of the appellants’ loss. The Act does not say that nor is it a necessary inference from sec 12(3)(d). What Mr Johnston says is that, since the question whether there is an inaccuracy has to be determined by reference to the OS map it makes little sense to employ an entirely different means of measurement in order to determine the extent of the inaccuracy and to quantify the loss caused. We respectfully disagree. We would put the matter this way: once the threshold of sec 12(3)(d) has been crossed why would one not use the best evidence available for assessing the extent of the error? As Mr Howie pointed out, courts expect precise evidence to be used when it is available. It is available here and we see no satisfactory reason for refusing to use it. Indeed, when it comes to realigning the road we have nothing else we can use. There is no alternative material setting out the re-routing of the road, whatever its dimensions, such as to demonstrate whether the realignment would cross third party land. Mr Watson asserted his view that there was scope to realign but provided no mapping work of his own based on OS maps in support of that conclusion.

[162] Finally, in relation to this matter, we do not consider that the floodgates argument has any merit. That is for two reasons. First, a claim for indemnity will always have to pass the OS based threshold test of sec 12(3)(d). Second, even if use of more detailed mapping is likely to increase the amount of indemnity payable once that test has been passed that is not a good reason to reject its use. The purpose of the legislation is to indemnify the victim of an error for his loss. There is no unfairness in assessing that loss as accurately as possible.

[163] Accordingly we hold that it is open to us to have regard to the Massie Reid and Goodson Associates drawings and that we should do so.

[164] Moving on to the substance of the matter then, Mr Johnston asks how wide a realigned road would have to be. Essentially, would the carriageway be four metres or 3.5 metres wide and would the verges be two metres or one metre wide?

[165] Raising this question as one of the primary issues in the case might be taken to mean that the respondent concedes that third party land would be needed if the road must have a four metre carriageway with two metre verges, but Mr Johnston did not go as far as expressly conceding that. What he says is that the tolerances associated with the OS map do not permit such a conclusion and that we ought not to have regard to the Massie Reid and Goodson Associates material. It is not disputed that if we do look at that material the result is that a realigned road (of the approved dimensions) would require access at least into plot 6. That being so, and since we consider ourselves not only entitled but obliged to have regard to this material, our conclusion is that the triangle is a ransom strip unless a relaxation of Road Consent so as to permit a narrower road is likely to have been obtainable.

[166] Mr Johnston’s position, as we understand it, is that, the possibility of a relaxation having been raised by the respondent on the basis of Mr Mitchell’s evidence, it is for the appellants to show that it would not have been granted. He does not have to go as far as to prove that a relaxation would probably have been granted.

[167] In so arguing he invites us to set aside Mr Kelly’s evidence. There are three grounds for this. First, there is the criticism of the spirit in which Mr Kelly is said to have given his evidence. Second, he is said to have based his conclusions on the realignment of the road on a false premise, namely that the obligation to build a wall was enforceable. Third, his expectations as to how the roads authority would respond to an application for a narrower road are inconsistent with those of Mr Mitchell, whose evidence is to be preferred for the reasons already given.

[168] We have already dealt with the first of these. The second ground of attack has merit in relation to Mr Kelly’s report. It is almost wholly based on the need to accommodate space for the wall. That is not a criticism of Mr Kelly; he was acting on instructions. However, his evidence is not confined to his report. He also answered questions and it is clear that based on Mr Moir’s drawings he considered that an eight metre road (inclusive of verges) without the wall would require plot 6 land. As to the third matter, the disagreement with Mr Mitchell where they had different opinions as to the prospects of success of an application for a narrower road, we do not see Mr Kelly’s views on that issue as having any connection to the issue of the wall. He was reporting his experience over the years as was Mr Mitchell. In this judgement, therefore, we place no reliance on Mr Kelly’s report in so far as based on the validity of the obligation to build the wall but we do take the rest of his evidence into account.

[169] The evidence on the matter of possible relaxation is all expressed in terms of how the developer might have acted, or might yet act, hypothetically. We know that in the real world the road is eight metres wide and is not going to be moved nor its width reduced. The developer has largely completed his development and may apply to have the road adopted at any time. The parties are agreed that the context is the land ownership arrangements as at March 2007.

[170] The question is put by Mr Johnston in the form: what would the result be of an application by the developer to vary the width of the road to 5.5 metres? Mr Mitchell did not provide us with a report, nor with a written statement of his evidence. He was not asked to do so. Instead he simply answered the questions that were put to him on the day. Overall his position was one of absence of hostility to re-alignment with a narrower road. Safety was the principal concern for him as a roads official. Such an application would be considered, without the roads authority necessarily knowing the reason for it nor the land ownership arrangements. If at the outset of a development a proposal would have been acceptable then a variation at a later stage would likely be accepted. He did not however say that a variation of the type sought here would have been granted at first instance. He thought it possible that a road of reduced width would avoid plot 6 but he would have required to scale Mr Moir’s plans to be certain; evidently he had not been asked to do so in advance nor was he equipped to do so during his evidence. Nor, apparently, had he been given any particular realignment proposal to consider. He also said that passing places within sight of each other would need to be provided where the carriageway was narrow but no detail was given. It was not said whether the existing passing places would suffice. At the outset of the planning process, he said, plots could have been arranged so as to accommodate a road along a different route but once the houses had been built and sold the agreement of owners would be required where there was encroachment. There was no evidence to suggest that the requisite passing places could have been created without third party involvement.

[171] One of the difficulties that we have with Mr Mitchell’s evidence is that we see, on review, that it tends to conflate different points in time. He made it clear that under the 1997 guidelines, in the early 2000s, variation was more readily granted than now. But he also said that the guidelines changed in 2004. The relevant date for the purposes of this application is March 2007. Further, in agreeing with Mr Howie that Mr Craig had ruled out re-alignment once plot six had been sold, Mr Mitchell said that at that time plot 7 had not been sold. Mr Craig’s letter is dated January 2011. The date of entry for plot 7 was 20 May 2005 and the relevant disposition (production A8) was recorded on 21 June of that year.

[172] It is clear that Mr Kelly’s perceptions in this area very different. He considered that variations of the type in question are rare and only permitted for planning purposes, not to help a developer out of a financial difficulty. The difference between the two witnesses might in part be accounted for by their different backgrounds, allied to terminology. From the planning perspective variations may be rare whereas in the engineering world many applications may be permitted free of involvement of any planning considerations.

[173] We also have what was said by Mr Craig, a former colleague of Mr Mitchell’s, in the letter of January 2011 over the signature of the Principal Roads Engineer (production A36). In that letter, he advised Ms Paton in connection with the red route and then went on to discuss two other alternative routes, shown green and the blue on an attached plan. So far as the red route is concerned he described the regime in force at the relevant time and what was approved and built. He stated that once plot 6 had been built realignment would not have been possible without taking access to part of that plot. He then moves on to the alternatives and provides a plan that contains details of the length of road required and the number of third parties that would be involved.

[174] This letter was plainly intended to provide advice to the Valuation Office Agency in connection with their valuation in the context of the issue of the ransom strip. It is definite in its view on the red route. It discusses the road width of eight metres. If variations to the normal standards were commonplace, it is surprising that no mention is made of it in a letter seeking to identify alternatives, which is to all appearances a full, careful and considered treatment of the matter. Given the unattractive character of the alternatives, a narrower road such as to permit realignment is an obviously preferable alternative, if it would have been approved. Yet no mention is made of it. We think that can only be because Mr Craig did not consider it a plausible alternative. His letter seems to represent the considered view of the person dealing with the matter within the authority on the issue in question. We regard it as more definitive than the hypothetical evidence given by Mr Mitchell.

[175] What our assessment of the evidence comes to is this. On a question of this kind one would expect the evidence of Mr Mitchell, as a roads engineer, to be preferable to that of Mr Kelly, as a planner. However it suffers from lack of clarity as to the point in time being referred to and lack of support in the way of a definite scheme. He had not even been asked to carry out the scaling exercise required to see whether a road of narrower, but adoptable, width could be threaded through between the appellants’ property and the southern boundary of plot 6. So, whereas, as a matter of generality and in relation to the generalities whereof he spoke, we prefer his evidence to that of Mr Kelly, in relation to the facts of this particular case, it tells us nothing more than that there was a theoretical possibility of realignment of a narrower road. Moreover, it has to give way to the statement by Mr Craig that realignment was in fact not possible once plot 6 had been sold. Our conclusion on this question therefore is that the established normal standard would have been adhered to by the roads authority.

[176] Had we found that a 5.5 metre (carriageway and verges) road would have been approved then it would have been necessary to consider whether it would have required third party land. This would involve not just the road, but the passing places. We have no evidence or material based on the registered plans to decide the issue. The respondent’s pleadings contain no averments concerning a narrower road and the appellants therefore had no reason to prepare maps on that basis. The respondent seeks to have the appellants’ maps disregarded and yet has produced no maps of her own showing the line of a re-routed and narrowed road. She has not shown how moving the road a metre north would, as she avers, avoid both Craigmyle land and plot 6. Her pleadings on this matter have not been supported by evidence.

[177] Our conclusion is, therefore, that the triangle was indeed a ransom strip as at March 2007.

Valuation

[178] The approach to be taken on that basis is agreed. Following the method adopted in Stokes, both parties reach a figure for development gain of about £1.2 million. Mr Murdoch takes the value of the ransom strip as being 33% of the development gain, whereas Mr Watson and his associate, Ms Paton, proceeded on the basis of 25% of the gain. Mr Howie invites us to adopt the “conventional one-third” rather than the “more aggressive one-quarter essayed by Ms Paton”. Mr Johnston invites us to favour one-quarter on the basis that there were two alternative options for access, the blue and the green routes; but if we held there was only one alternative then, under reference to Mr Watson’s view, he would agree Mr Murdoch’s figure.

[179] Apart from the methodology which it used, the critical element of Stokes is that it assigns a ceiling of one half of the gain where a ransom strip constitutes “the only key” to unlocking the development. (Although Mr Murdoch indicated that, in practice, there might be cases where the 50% figure could be exceeded.)

[180] The evidence for local realignment of the existing road is considered above. We have found that the red triangle is a ransom strip and that realignment of the road would involve at a minimum incursion onto the original plot 6. As to the other alternatives, that evidence is in production A36, the letter from Mr Craig. The plan attached to the letter illustrates two alternative routes into the east part of East Mains. The first, the blue route, proceeds east past nos 1-3 East Mains and then south down the former railway to the north of the Craigmyle owned land. It is said to require negotiation with possibly three owners and involve construction of 180 metres of new road. The second, the green route, takes a longer course with the road exiting the east part of East Mains at its north end, turning east, then south east and then south west reaching the public road at a new junction. This route is said to require land from possibly two owners and to require 400 metres of new road. Both alternatives are said to require, in addition to acquisition and construction costs, work to power lines of an unspecified character and cost.

[181] The letter is written by an engineer who had knowledge of the development in the context of the provision of advice to Ms Paton of the Valuation Office. It does not purport to deal with planning considerations, nor does it deal with costs other than as is roughly implied by the lengths of the routes. It recognises that negotiations with other landowners would be required but it is not known whether they would be amenable to such a proposal or on what terms. This falls to be seen in the context of the cost of re-routing the existing road and services round Craigmyle land services as provided by Mr Watson of somewhere between £50,000 and £75,000 for ten or fifteen metres.

[182] Mr Murdoch described both of these routes as “economically challenging” and was clear that the existing “red” route was cheapest and best. If that was accepted as the correct basis on which to precede, his understanding of Mr Watson’s position was that a 33% share would be appropriate.

[183] In our view, on the information before us, which is limited, the green route is more of a theoretical construct rather than a practical alternative. On any view the length of new road that would require to be constructed, other things being equal, and with no evidence to the contrary, would be roughly double that of the blue route. There would be an additional junction with the public road. We very much doubt if it would ever be an economic alternative to the red or blue route. Even the blue route, which is a more plausible alternative, still requires a considerably greater length of road to be constructed than the red route. But we must also keep in mind that we have found that local rerouting is a possibility albeit with the need for the co-operation of the owner of plot 6.

[184] Taking all of these matters into account, we prefer Mr Murdoch’s view that a 33% share of the development gain is appropriate.

[185] On the alternative basis of there not being a ransom strip, Mr Watson considered that a developer would be prepared to make a payment equivalent to the cost of realigning the road plus a margin to achieve settlement. He had taken advice on the cost of relocating the road (subsequently amending the figure) and added a margin to allow for the negotiating process. The costings were not produced. Against this there was little objection from the appellants and no hard evidence to the contrary. Mr Murdoch did suggest that the appropriate figure might be somewhat higher but did not produce any evidence in support of his suggestion. We are satisfied that on this line of approach the price that the developer would be prepared to pay for the “right to remain” is fairly stated by Mr Watson at a figure of £75,000.

Section 13 Claim and Consequential Loss Claim

[186] Parties are agreed that the appellants are entitled under this head to the sum contained in production A48, as updated by A62, should be allowed under exclusion of, first, items 1, 2, 3, 8, 11 and 13, which relate to the abandoned claim on the Craigmyle plot; and, second, items 5, 6, 7, 9, 10 and 19 which were the items concerned in the consequential loss claim. The resulting figure is £124,272.41 and we have found the appellants entitled to that sum. Further costs, unquantified at the time of poof, have been incurred since production A62 was prepared. Mr Howie invited us to deal with those by making an award in favour of the appellants of “that sum which shall be the aggregate (inclusive of VAT) of the sums incurred by the Appellants in the prosecution of their claim to the indemnity sought … intimated to them after 30th November, 2015”. While the case was at avizandum the applicants’ agents produced specification of these additional amounts, being a further 11 items and including the costs of the hearing, together with an additional invoice in the sum of £450 for a topographical survey which they say falls to be added to the sum of £124,272.41 referred to above. These items and charges have not been agreed, the respondent wishing to reserve her position pending the decision of the tribunal. We have not made an award in respect of these additional matters at this stage but reserved the right of parties to return to us in the event that they cannot be agreed.

Interest

[187] Mr Howie seeks interest at 8% on the sums involved but concedes that a distinction falls to be made between the heads of claim. As regards the sec 12 claim interest should run from 7 March 2007 until payment. Interest should run on £124,272.41 under sec 13 from 1 October 2014 until payment and interest on costs intimated after 30 November should run from 1 January 2016 until payment.

[188] In response Mr Johnston does not oppose an award of interest but submits that in respect of the sec 13 claim, interest should run from the date that the expenditure was incurred.

[189] In our view Mr Howie’s motion represents a sensible simplification of the matter which involves no real injustice to the respondent. Accordingly, we have awarded interest on the sec 12 sum from 7 March 2007 and on the sec 13 award from 1 October 2014 until payment, both at the rate of eight per centum per annum.

Postscript

Mr Craigmyle described in evidence the lengthy process by which we have reached the present position. It involved him having to resort to Freedom of Information requests at certain points and it is plain that there were times at which the respondent, or some members of her staff, were dismissive of his claim and sought to prevent it progressing. In doing so they misjudged not only the merits of the claim but the tenacity of the claimant. A less well resourced victim of an error in the Register, in terms of intellect and finance, may well have given up, which would have led to a loss going unindemnified. We realise, of course, that the respondent and her staff have to take a view on claims. No doubt they receive some, perhaps many, unmeritorious ones. But failure to engage is not only unfair in the case of a meritorious claim but can lead to consequences in expenses. In the present case, had the respondent engaged in negotiation with the Craigmyles when she received Ms Paton’s report, as Mr Craigmyle expected her to do, there must be at least some prospect that the claim would have settled and that all the subsequent expense would have been saved.

Finally, although this claim arises out of refusal to rectify an error in the Register and although we have been critical of the Keeper in what we have just said, it should, of course, be remembered that the error would not have occurred but for the terms of the disposition by Mr McGibbon and Mrs Skea in favour of Inchmarlo, whereby the granters purported to retain ownership and grant rights over land which they did not in fact own.


Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 7 July 2016

Neil M Tainsh – Clerk to the Tribunal