1. This is an application for a variation of a title condition which the applicants, James and Donna Fletcher, seek so that they may carry out an extension to their house at 42 Meadowside, Beith, Ayrshire. The application is opposed by the neighbouring proprietor of 44 Meadowside, Georgia Parker – the respondent. The condition was first formally established when the house at No.44, a mid-terrace one, was sold by the local authority to the respondent in 1990. A servitude right of pedestrian access was granted in favour of the owner of No.44 over part of the back and side garden of the applicants’ property. The reciprocal burden was set out in the applicants’ title, a Feu Disposition by North Ayrshire Council registered in the Land Register of Scotland on 18 April 2002. The right of access enables the respondent to move bulky or heavy items, including her refuse bin from her back garden to the street which otherwise would have required to have been taken through her house. The route of access is positioned immediately to the rear of the applicants’ house and its continued presence would not permit any extension of their house. The applicants have applied to have the line of access varied by re-siting it a distance 12.5 metres back from its current position. The respondent objected principally on the grounds of both the additional distance involved and the additional maintenance involved. The Tribunal has considered the matter under sections 98 and 100 of the Title Conditions (Scotland) Act 2003 (“the 2003 Act”) and has decided to grant a variation of the route of the servitude as sought by the applicant.
2. The applicants were represented by Mr Rankin of Stewart and Osborne, Solicitors of Beith and the respondent by Mr Annan of Mathie-Morton, Solicitors, Ayr. At the request of the parties the Tribunal agreed to deal with the matter on the basis of written submissions supplemented by a site visit. The applicants relied on the terms of their written application, their answers to the respondent’s initial objection and two plans which they submitted. The first of these showed by coloured shading the position of the servitude right as set out in the original disposition in favour of the respondent and the second showed, again by coloured shading, the revised line sought by the applicants. In addition to representations opposing the application, the respondent lodged a written submission, which was in response to the Tribunal’s invitation, given to both parties, in advance of the site visit.
3. The Tribunal inspected the locus on the morning of 12 December 2006. The first named applicant and the respondent along with their respective solicitors were in attendance. At the site inspection the Tribunal took the opportunity to clarify two matters with the parties. The application stated:
“The applicant wishes to vary the line of the servitude right of access and re-route the footpath shown hatched black on the original Feu Disposition around the extension.”
4. By contrast the plan prepared by the applicant showed the revised line positioned some 4 metres back from the rear wall of the proposed extension. The applicants confirmed that it was the position shown on the plan which was the subject of their application. The respondent confirmed that she understood that it was this line (and not the statement in the application) which was being applied for. It had been clear to the Tribunal from its perusal of the application that the plan to the application had not been accurately drawn to scale and it showed the proposed line much closer to the back wall of the proposed extension than was properly the case based on the dimensions printed on the plan. The Tribunal was again able to be satisfied that the applicants intended that their application be based on the dimensions stated and that the respondent fully understood that. It was on this basis that the Tribunal proceeded with its consideration of the matter.
5. The terms of the servitude as it appears in the applicant’s title (the Feu Disposition by North Ayrshire Council recorded as aforesaid) are as follows:
“(One) There is reserved to us and our successors as proprietors of the adjoining subjects 44 Meadowside, Beith a heritable and irredeemable servitude right of pedestrian access through the subjects hereby feued over the footpath shown tinted blue on the Title Plan and that for the carriage of coal, garden and domestic refuse and items of a heavy or bulky nature which it would be unreasonable to carry through the dwellinghouse and for access for tradesmen calling at 44 Meadowside aforesaid and for no other purpose”
The reciprocal right in favour of the respondent is set out in identical terms in her title – a Feu Disposition by Cunninghame District Council recorded in the Division of the General Register of Sasines for the County of Ayr on 13 April 1990. Corresponding rights are contained in the Feu Disposition in favour of the applicants.
6. Section 98 of the 2003 Act inter alia empowers the Tribunal to grant:-
“… a variation, discharge, renewal or preservation, of a title condition … only if they are satisfied, having regard to the factors set out in section 100 of this Act, that … it is reasonable to grant the application”.
7. There are 10 factors set out under (a) to (j) in section 100. These are as follows:-
(a) any change in circumstances since the title condition was created (including, without prejudice to that generality, any change in the character of the benefited property, of the burdened property or of the neighbourhood of the properties);
(b) the extent to which the condition—
(i) confers benefit on the benefited property
(ii) where there is no benefited property, confers benefit on the public;
(c) the extent to which the condition impedes enjoyment of the burdened property;
(d) if the condition is an obligation to do something, how—
(i) practicable; or
(ii) costly,
it is to comply with the condition;
(e) the length of time which has elapsed since the condition was created;
(f) the purpose of the title condition;
(g) whether in relation to the burdened property there is the consent, or deemed consent, of a planning authority, or the consent of some other regulatory authority, for a use which the burden prevents;
(h) whether the owner of the burdened property is willing to pay compensation;
(i) if the application is under section 90(1)(b)(ii) of this Act, the purpose for which the land is being acquired by the person proposing to register the conveyance; and
(j) any other factor which the Lands Tribunal consider to be material.
8. The applicants’ house and the respondent’s house form, respectively, the end and mid-terraced houses of a two storey range of four houses originally built by the local authority and are now probably about 40 years old. They form part of a fairly large estate of similarly aged houses, originally developed by the local authority. The respondent purchased her house in 1990 and the applicants in 2002. Both properties have clearly been well looked after and both have been improved by their respective owners with the external walls re-rendered, windows renewed and in one case the original roof re-clad.
9. In the absence of the servitude right of access which reflects the long-standing arrangements which existed under council tenancies, the respondent is only able to gain access to her rear garden through the interior of her house. Precast concrete slabs have been laid along the line of the servitude at the rear of both houses but there are incorporated two steps at the boundary of the two properties. The section of the servitude which runs along the end gable of No. 42 and leads to the public road is undefined on site and comprises part of a paved area used for vehicle parking.
10. The applicants seek to have the line of the servitude moved to a position 12.5 metres to the rear of and parallel to the back wall of both houses. When it reaches the line of the end gable of the applicants’ house it will then run to the road joining the line of the existing servitude. The result of the proposal would be that the benefited proprietor would, on exiting her back door, require to proceed towards the rear of her garden a distance of 12.5 metres along an existing footpath before turning at right angles and then walking the width of both houses (a similar distance as present) and thereafter going back the distance of 12.5 metres before joining the line of the existing servitude. The back gardens of both houses are generally level; the tribunal was advised that the new line would incorporate only one step. At present earth spoil from excavations carried out by the burdened proprietor affects the proposed new line.
11. The local authority has considered that it is not necessary for planning permission to be obtained by the applicant but they have granted a building warrant. In the event of the proposal proceeding (and being completed) a completion certificate would be issued and this would comprise all that would be needed in terms of public body consents.
12. The applicants did not directly address the factors of Section 100. The respondent, however, did put forward, in her written submission, arguments which related to the factors in Section 100 relevant to her case.
13. The applicants primarily argued that the servitude restricts the extent to which they can enjoy the use of their property. They have received a consent from the local authority but are unable to implement this because of the presence of the servitude. The proposed alteration of the route of the servitude would not impede or detract, in their view, from the use permitted under the servitude right. They concluded by stating that they have offered to meet the costs of re-routing the pathway such that the respondent incurs no costs in the matter.
14. The respondent set out the background to the matter and emphasised that no neighbourhood notification had ever been received by her and that she had no prior warning of the proposed works. Her first knowledge was awakening one morning to discover site works already underway. As a result of correspondence between solicitors this work was stopped. The respondent had been in occupation of the benefited property for 38 years and there had been no change in the character of either the benefited or burdened property, (although there had been internal alterations to the burdened property). The variation sought conferred no benefit on the respondent who was now 61 years of age. There would be an increase in the physical burden placed on her because of the additional length of the access route as well as increased maintenance costs. She rejected that the burden impeded the applicants in their use of their property (but did not elaborate on the reason). There would be no benefit to the respondent’s property but there would be a benefit to the applicants’ both in terms of the actual extension as well as having the access right moved to a position closer to the rear of their garden. The respondent also submitted that the proposed extension would affect her right to unfettered enjoyment of her property as it will block out light and cast a shadow over her property.
15. Neither party referred us to any authorities, which in the circumstances of this case, may not be surprising. The particular physical circumstances in this case were likely to be the determining factors.
16. The circumstances of this case are quite straightforward and relatively simple. A servitude right of way, if maintained without variation will not allow the applicants to proceed with the extension to their house. A variation to the extent of re-positioning the line will allow the extension to proceed but this will extend the length of the right of way and thus increase, slightly, the physical burden as well as the financial burden on the respondent. The 2003 Act allows variations such as this to be made by the Tribunal but in considering such applications we are required to consider the matter as it is laid down in Section 98 and, so far as the factors to be taken into account are concerned, as they are set out in Section 100 of the Act.
17. In both Ord v Mashford 2006 SLT (Lands Tribunal) 15 and George Wimpey East Scotland Ltd v Fleming & Others 2006 SLT (Lands Tribunal) 2 both of which were issued shortly after the 2003 Act came into force, the Tribunal set out how they considered they should best proceed under this legislation. It was concluded that while we require to consider all of the individual factors contained in Section 100, when reaching our conclusion we had to form an overall view of the reasonableness of the application. It was also suggested that the underlying purpose of the title condition could play a significant part of our elevation of the individual factors.
18. As it turns out in this case, purpose, (factor (f)), seems to us to be uncontroversial and capable of straightforward determination. The burden has been placed on the applicants’ property so that the respondent can move goods, including her refuse bin, from the back of her house to the public road at the front without going through her house. Although the route of the path is specified in the servitude, the purpose of the servitude does not include any intention to restrict building. We see no additional or ancillary purpose which is relevant to this case.
19. So far as factor (a) is concerned while we generally agree with the respondent (that there have been no changes) we have concluded that one possible change in circumstance, affecting the neighbourhood, is that there are indications that a number of the former local authority houses are now in private ownership with obvious signs of improvement and upgrading. Indeed both the applicants’ and the respondent’s houses very much come into this category. The significance we attach to this is that owner-occupiers are much more likely to want to invest in their own properties which is likely to include extending the existing house. We are aware that the situation which has arisen here is not uncommon. The application is not therefore unusual and is part of a pattern which occurs when a residential area previously in the ownership of a public body is sold off to sitting tenants. The fact that the applicants have plans and consent for the extension could also be considered to be a change in the circumstances affecting the applicants’ property. In the circumstances factor (a) favours the applicants.
20. Factors (b) and (c) will play a significant part in our determination in this case. Factor (b) requires us to consider the extent to which the condition confers benefit on the benefited property whereas factor (c) asks us to consider the extent to which the burden impedes the enjoyment able to be gained by the owners of the burdened property. Since the introduction of the 2003 Act we do not simply weigh these two factors against each other in the balance, but we are satisfied that they will both go to the heart of the case. The ability of the respondent to go to and from the public road with her refuse bin and to bring in any heavy or bulky goods this way is a benefit accruing to the benefited property. But this benefit will not be lost to the respondent if the variation were to be granted. She will still be able to gain access from her back door to the street albeit by a more circuitous route. The respondent also raised the matter of her age and the physical effect the longer route will have on her. While we understand her concerns the servitude right is not a personal one but rather one attaching to the property. We cannot therefore take directly into consideration the matter of the respondent’s age except in so far as it would be an issue which any occupier of the benefited property would take account of. The fact of the present specified route being shorter than that proposed is a benefit, but when it is remembered that either way the respondent has to walk some distance along the path and around the end of the building, for example to take her refuse bin out, the extra distance does not seem to us to be significant.
21. The respondent also raised the matter of the additional maintenance costs which would arise from the longer route if the application was successful. We regard these as being likely to be de minimis given that the access is not likely to attract heavy usage.
22. In our judgement there is some reduction in benefit to the respondent if this application were to be granted but we do not consider that reduction to be significant and, if anything at the lower end of any scale of measurement.
23. The condition does impede the burdened property (factor (c)). The applicants want to extend their house and they have the necessary consents to do so. They cannot proceed with their plans unless the servitude right in favour of the respondent is varied. By planning to extend their house they are not seeking to do anything unusual or extraordinary; in reality it is an increasingly common course of action. Their inability to carry out such plans will diminish the worth of their property. By contrast we do not consider that any re-routing of the access will cause any measurable diminution in the value of the respondent’s house. We would also mention, in passing, that we place no weight on the claim that the extension will devalue the respondent’s house because of the effect of shadow from the extension. That has no relevance in relation to this servitude right. The only matter in our opinion relevant to value which we can take account of is the effect of the moving of the line of the servitude right and as we have said we believe this will be negligible.
24. Turning to factor (e), the applicants have only been owners for a relatively short period of time although the respondent has been an owner for much longer. This is not a factor which weighs heavily in the circumstances of this case.
25. We have dealt earlier with “purpose” which brings us to factor (g). This clearly favours the applicant since the consents which the local authority considers to be necessary are fully in place.
26. No offer of compensation (factor (h)) has been made in this case but in all of the circumstances we do not consider this to favour the respondent or to affect the applicants’ case significantly given the nature and type of case.
27. Finally there is factor (j), the catch-all factor. No matter was raised with us and we, ourselves, do not consider there to be any relevant matter which could be considered to arise under this heading.
28. In all of our decisions under this particular legislation we have made it clear that we interpret our task as to look at all of the evidence under each of the factors referred to in Section 100 and thereafter to weigh them up as a whole so enabling us to judge in an overall sense the reasonableness of the applicant case. If we are satisfied having taken due account of the evidence available to us and assessed it under the various factors set out in Section 100 that it is reasonable to grant the application then we must do so.
29. Judging the matter in this overall way we have concluded that the evidence in this case favours the applicants. While there will be some inconvenience to the respondent she will still be able to gain access to the public road across the back garden of her neighbour’s property. The effect of refusing the application would be to deny to the applicants the opportunity to erect an extension to their house. The proposal for the extension appears to us normal and reasonable. Refusal in such circumstances would in our opinion be disproportionate to the relatively minor impact on the respondent’s property. Indeed while this particular respondent may have no desire to extend her property it is not outwith the bounds of possibility that at some future date an occupant of the respondent’s house may wish to erect a similar style of extension which may require the servitude right to be moved.
30. Accordingly having taken account of all the circumstances we find in favour of the applicants.
31. As we referred to in an earlier part of this judgement the plan put forward by the applicants was not to scale. Following issue of this Opinion in draft form the applicants produced a plan drawn to scale showing the revised line of the servitude. This was intimated to the respondent. Accordingly, we can now issue our order in final form.
32. We will leave for written submissions the issue of expenses should either party wish to make application.
Decision issued: 14 March 2007
Member: K M Barclay, FRICS
Case Ref: LTS/TC/2006/25
Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 14 March 2007.
Neil M Tainsh
Clerk to the Tribunal