A servitude right of pedestrian access was granted in favour of Mr and Mrs A M McDowall (“the respondents”) when they acquired their former council house at 18 Kincraig Avenue, Maybole. The right enabled them to take access from their back door to the public road over a footpath lying to the rear and side of the adjoining house, 20 Kincraig Avenue, owned by Mr and Mrs W M McNab (“the applicants”). The applicants seek to vary the reciprocal title condition (which was imposed as a burden in the foundation title to their property) so that they can build a single storey extension to the rear and side of their end terraced house. The application is opposed by the respondents. The applicants seek to have the route of the footpath altered, at their expense, to enable them to build a rear extension virtually the full width of their house. The depth of the proposed extension is 3.5 metres. The design, being virtually a full width extension, necessitates laying the footpath along the side of the extension on the respondents ground. The respondents oppose the application and consider that the width of the extension should be reduced by approximately 1.2 metres so that the footpath along the side of the extension is sited on the applicants ground. The Tribunal has reached the view that the proposal involves building an extension that is reasonable in terms of scale and design and has decided on a consideration of the factors set out in section 100 of the Title Conditions (Scotland) Act 2003 (“the Act”) that it is reasonable to grant the application. Accordingly, we will vary the title condition to enable the footpath route to be altered as proposed by the applicants.
The application was served by the Tribunal on the proprietors of the benefited properties, numbers 16 and 18 Kincraig Avenue. No objection was received from the proprietors of No.16.
The applicants were represented by Mathie-Morton, Solicitors of Ayr and the respondents by Black Hay, Solicitors, also of Ayr. At the request of the parties, the Tribunal agreed that the matter could be dealt with by way of written submissions and a site visit. Both parties supplemented their pleadings with final written submissions and the applicants lodged various productions including the land certificate and letters and drawings from Hugh White, Architects which detailed the proposed extension and also showed the impact that changes, suggested by the respondents, could have on the design. Plans were also lodged with the application showing the existing pedestrian access route and the proposed access route that would be formed by the applicants if their application to the Tribunal was successful.
The Tribunal inspected the site and its surroundings on 12 September 2007. The applicant, Mrs MacNab and the respondent Mr McDowall were present as were solicitors representing both parties.
The terms of the servitude, as they appear in Entry 2 of the Burdens Section of Title Sheet – AYR 51941 – are as follows:
“Reserving always to us and our successors as proprietors of the subjects 16 and 18 Kincraig Avenue, Maybole, a servitude right of pedestrian access over the footpath tinted blue on the Title Plan and that for the carriage to and from the rear of the said subjects 16 and 18 Kincraig Avenue, of coal, manure, garden refuse and items of a heavy or bulky nature which it would be unreasonable to carry through the dwellinghouse on the said subjects and that for tradesmen calling at the said subjects and for no other purpose;”
The entry further narrates:
“DECLARING that the Feuars shall be entitled to recover from us or our successors as proprietors of the said subjects 16 and 18 Kincraig Avenue, a one-third share of the cost of maintaining in good order and repair the said footpath tinted blue on said plan;”
Entry 2 comprises the title conditions as originally contained in a Feu Disposition of the application subjects (20 Kincraig Avenue) by Kyle and Carrick District Council in favour of May McDowall, recorded in the Division of the General Register of Sasines for the County of Ayr on 3 June 1994.
Section 98 of the Title Conditions (Scotland) Act 2003 enables the Tribunal to grant variation, discharge, renewal or preservation of title conditions … “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.”
Section 100 identifies the various factors to which the Tribunal are to have regard in determining applications. They include inter alia:
Ord v Mashford 2006 SLT (lands Tr.)15
The applicants’ house forms the westmost end dwelling in a terrace of six former council houses which runs in an east/west direction on the south side of Kincraig Avenue, Maybole. Access to the rear of Nos. 16, 18 and 20 is by way of a paved footpath from the pavement, past the gable end of No.20 and then, after turning a right angle, along the rear of each of the houses to No.16. The footpath runs parallel to and approximately 1 metre back from the rear elevation of the houses and 6 steps lead down from the back doors of the houses to the footpath which is at a lower level. The rear gardens lie beyond and to the south of the footpath. The respondents’ house, No.18, immediately adjoins the applicants’ house No.20.
At the east end of the terrace there is a similar arrangement with a path running past the gable end of No.10 Kincraig Avenue and serving the rear of Nos. 10, 12 and 14.
The houses were built by the local authority in 1953 and leased to council tenants, Following the introduction of the “Right to Buy” legislation many tenants have bought their property with the respondents acquiring their house in 1990 and the applicants in 2003.
The applicants want to build a single storey extension to the rear and side of their property. Their proposals would involve building to the rear, virtually the full width of their property and also building out from part of the west gable. This proposal, for which planning permission has been granted, would, if implemented, result in the line of the existing footpath being built over. As a result the applicants seek to amend the line of the footpath by repositioning it some 1.6 metres to the west where it passes the gable extension and some 3.5 metres to the south so that it lies beyond the proposed rear extension.
The applicants propose to “reconnect” to the footpath to the rear of No.18 by laying, at their expense, a new section of footpath in the respondents’ garden virtually along the new side wall of the extension. This would result in an area of the respondents’ garden ground extending to 3.5 metres by 1.2 metres being used for part of the new paved footpath.
The plans for the proposed extension show that the east gable wall of the extension will be built to within 150 millimetres of the mutual boundary line. The pitch of the proposed roof is about 17.5 degrees and the roof of the extension will meet the rear wall of the house just below the sills of the two existing first floor windows. Seven steps will lead from the back door of the proposed extension to the footpath and garden ground.
The applicants argue that the present line of the servitude restricts the extent to which they can enjoy the use of their own property. Planning consent has been granted but the respondents insist on exercising their rights along the existing footpath. This prevents the applicants from proceeding with building the extension. They consider that the purpose of the servitude, imposed by the local authority on sale, was to ensure that residents had access for transporting bulky or heavy items which it was not practical to take through the house. With the provision of the new access this purpose would continue to be served and the respondents’ use would not be impeded. The applicants have undertaken to meet the cost of constructing the amended footpath and they consider the additional maintenance costs of the footpath over some 3.5 metres when shared with two others is de minimis. No compensation has been offered by the applicants and none has been claimed by the respondents.
The respondents who are aged 87 and 85 are joint proprietors, having acquired their property in 1990 and previously having occupied the house as tenants since 1953. The feu disposition in their favour effectively re-stated the tenancy conditions which had prevailed since the start of their lease. They argue that there has been no change in circumstances since 1990. The present title condition confers benefit on the respondents who enjoy a readily accessible footpath. Access to the residents of No.16 represents a minimum amount of encroachment on to their rear garden ground causing only modest disruption to the respondents’ privacy. It was stressed that when the residents of No.16 pass the rear of No.18 over the footpath in its present position, they do so largely unobserved.
The proposed line of the footpath offers no benefit to the respondents and adds to their physical burden by increasing the length of the path and adding to the cost of maintaining a longer footpath than previously existed. The extension will overshadow their garden and kitchen window and, importantly, the respondents will lose garden ground as part of the new footpath, as proposed, will be formed on their property. The respondents consider it would be inequitable if they should be required to accommodate an extended footpath when a reasonable alternative already exists. The respondents consider that the width of the extension should be reduced so that any path extension could be laid on the applicants and not on the respondents land and that whilst this would reduce the floor area of the proposed extension this could be overcome by increasing the depth of the extension to the south. The respondents do not oppose the realignment of the footpath past the gable.
The servitude right of access, if maintained in its present form, prevents the applicants building an extension in the form they seek. A variation permitting a reroute of the servitude would allow the proposed extension to be built but the respondents would be affected by the change. The 2003 Act allows the Tribunal to make such variation if it is satisfied that having regard to the various factors laid down in Section 100 it is reasonable to do so.
In Ord v Mashford 2006 SLT (Lands Tribunal) 15 the Tribunal determined that it should consider all the individual factors set out in section 100 when considering the matter before it and form an overall view of the reasonableness of the application.
Factor (a) relates to the extent of changes in circumstance since the title condition was created including changes in the character of the benefited property, or of the burdened property or of the neighbourhood. Neither the respondents’ nor the applicants’ property has changed externally since construction, nor has the layout of the estate changed materially since it was built. However, it was noted that extensions have been added to nearby houses at 39 Queens Terrace and at 17 Kincraig Avenue. It is also noted that Planning Consent for the extension was granted by South Ayrshire Council. It is increasingly the case that extensions are added to former council houses as new owners, having exercised their right to buy, seek to modernize and improve their homes. Accordingly we consider there has been some change in circumstances since the title condition was created.
Factor (b) requires the Tribunal to consider the extent to which the condition confers benefit on the benefited property. As suggested by the respondents they have a readily accessible footpath to the rear of their property which is as direct as it is practical and in its present position minimises any disruption to privacy and minimises the extent of garden ground required for a footpath.
The respondents contend that the proposed extension design would result in an area of their garden being required for the extended footpath and that would undoubtedly be the case. They also contend that there would be a loss of light to their kitchen and a minor reduction in their privacy when the residents of no. 16, who would be more visible, pass the rear of no. 18. However, the essential benefit to the respondents is not lost as the ability of the residents of Nos.18 and 16 to gain pedestrian access over a footpath to the rear of their properties, for the purposes originally specified, is being maintained.
The Tribunal also has to consider the extent of the burden on the burdened proprietor, factor (c). If the respondents’ views prevail, the extension, as approved by the local authority, could not be built. The respondents consider that the reconfigured footpath could and should be positioned entirely on the applicants’ property and this, in their opinion could be readily achieved by reducing the width of the rear extension by 1.2 metres. Any floor-space lost as a result, the respondents argue, could be replaced by extending the depth of the extension. We are of the view, as is suggested by the applicants’ architect, that this solution is not practical as the roof pitch, already at a low angle, would, if maintained at the proposed angle, result in the roof line rising above the sill level of the first floor windows. It would, of course, be possible to redesign the extension by reducing its width so that the amended footpath could be located on the applicants’ land, though this would almost inevitably result in a reduced floor area to the extension. This would appear to amount to a substantial burden.
Factor (e) in a case such as this, where variation of an existing access route is proposed, is of little significance. Indeed neither party made any representations on this point.
Factor (f) – the purpose of the title condition. In this case the purpose is clearly set out – “a … right of access over the footpath tinted blue … for the carriage to and from the rear … of 16 and 18 Kincraig Avenue, of coal, manure … and items of a heavy or bulky nature which it would be unreasonable to carry through the … house.”
The route of the servitude is clear in the title plan but the purpose is only to provide access which is to be used under certain circumstances. The purpose is not therefore to protect wider amenity issues such as day lighting or privacy.
Factor (g). Planning permission was granted by Kyle & Carrick District Council on 19 March 2007 with no material conditions attached to the consent.
Factor (h). No offer of compensation has been made by the Applicants
The Tribunal in addressing cases of this nature has to consider all the evidence under each of the relevant factors, referred to in section 100, and to weigh them as a whole so enabling us to judge, in an overall way, the reasonableness of the applicants’ case. The respondents’ solicitor submits that their suggested alternative design should be adopted as that would result in a less onerous solution for the respondents’ when compared with the applicants’ design. That however is not the basis on which the matter is to be judged.
It seems to us that consideration of the following factors together leads to the conclusion that it is reasonable to grant the application by varying the title condition to permit the alteration of the route of the footpath as proposed by the applicants:
(1) the purpose of the servitude is to provide pedestrian access from the pavement to the rear of nos. 18 and 16 Kincraig Avenue for use under certain circumstances. The precise route, in our view, is only of limited relevance and whilst the respondents will have to use a small area of their garden for the extended footpath we do not regard this as a significant loss. The purpose of the title condition is not to protect amenity; (2) there has been some change in circumstances as extensions are built by new owners of their former council houses; (3) planning permission has been granted by the local authority; (4) weighing up as a matter of balance the benefits and burdens to the parties we conclude that the evidence favours the applicant. There will be some inconvenience to the respondents who will have to take a marginally longer route to the public road and they will not be able to cultivate a small area of their garden required for the footpath. There will also be a very small increase in the future maintenance costs but we do not consider this will be significant. We recognise that the respondents are elderly but we should consider the matter in the context of the title conditions rather than in the context of the parties’ personal circumstances. However if the application is refused the applicants would be unable to build an extension in the form they wish and which we consider to be a perfectly reasonable design and for which planning has been granted. Requiring the applicants to provide possible alternative extension proposals would, in the circumstances, represent a substantial burden.
Having regard to all the circumstances we consider it would be reasonable to grant the application.
Accordingly, our order will grant variation of the title condition to the extent of substituting the new route of footpath, for the former route, all as will be delineated on a plan attached to the order.
Should either party consider it appropriate to make a motion for expenses, this should be done in reasonable time, in writing. Opportunity will be given to the other side to respond and the matter will be dealt with, as is our normal practice, on written submissions.
Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 24 October 2007
Neil M Tainsh – Clerk to the Tribunal