[1] This is an application under Section 90(1)(a)(i) of the Title Conditions (Scotland) Act 2003 (“the Act”) by the burdened proprietor to vary the route of a servitude right of access created by express grant. The access route is across farm lands, including a part which runs round some farm steading buildings before reaching the respondents’ property, which is a former farmhouse and garden. The burdened proprietor proposes to sell the steadings and some ground to a housing developer and accordingly wishes to vary the access route. He has put forward a detailed specification of an alternative route in the area of the steadings, although that route has changed slightly since the original application. The respondents, while indicating that they are not necessarily opposed to variation of the access route, have made certain arguments in opposition to the application. Further, they seek regulation of a number of matters in the event of the application being granted: they wish the new section to be metalled and the existing position regarding repair and maintenance of the whole of the access road improved from their point of view; they seek exclusive access over the diverted part of the route (the right at present being expressly non-exclusive); and they wish the benefited property defined so as to include a small additional portion of their land, which portion was conveyed to them by the applicants without any express grant of access (this last matter being agreed, although there seems to us to be a question about the application of the Tribunal’s jurisdiction to that particular aspect). With parties’ agreement, the application has been disposed of on the basis of site inspection and written submissions.
[2] In summary, the Tribunal has decided:-
1. It is reasonable to grant the application;
2. As is normal in an application to vary an access route, the variation should only take effect upon completion of construction of the new section in accordance with the specifications provided on the applicant’s current plan (which does not provide for a metalled surface but in the view of the Tribunal provides a reasonable specification in all the circumstances);
3. There will be no order in relation to repair and maintenance of the access road;
4. There will be no order in relation to exclusive use of any part of the access road;
5. The Tribunal’s Order will record, so far as it is appropriate to do so under our jurisdiction, the agreed position that the further portion of the respondents’ land, which does not presently have any express grant of access, also enjoys the benefit of the servitude.
[3] The servitude right was created in a Feu Disposition by Mrs Rosemary Jane Wolrige Gordon in favour of the respondents dated 15 February 1985 and recorded in the General Register of Sasines for the County of Aberdeen on 26 February 1985, this being the conveyance of the farmhouse and garden situated at Mains of Rainnieston, Udny, Ellon, being part of and within the farm lands of Mains and Mill of Rainnieston and Cairnhill Moss Croft, in the following terms:-
“a heritable and irredeemable but non exclusive right of pedestrian and vehicular access to and egress from the subjects of sale by the roadway coloured blue on the said Plan I; Declaring that traffic flow round the loop in the said roadway will be solely in a clock-wise direction”
The loop referred to is on either side of a group of steading buildings, between the respondents’ subjects and the junction with the Pitmedden to Newburgh Road to which the access road leads. The proprietors of the farmhouse were made liable for 15% of the cost of maintenance of the said access road. The applicant acquired the farm land which forms the servient tenement by Feu Disposition by (First) Trustees under Deed of Trust by Mrs Rosemary Jane Wolrige Gordon and (Second) Mrs Rosemary Jane Wolrige Gordon in his favour dated 23, 27 November and 4 and 7 December and recorded on 21 December 1989, which Feu Disposition refers to the this servitude right although only by general reference. The applicant conveyed a small additional, contiguous portion of ground to the respondents for a nominal consideration by Disposition dated 29 October and registered on 26 November 1993. That disposition was silent on the matter of access, but parties were agreed that its proprietor in fact enjoys the same access.
George Wimpey East Scotland Limited v Fleming and Others 2006 SLT (Lands Tr) 2
Ord v Mashford 2006 SLT (Lands Tr) 15
[4] The application is in respect of the section of the access surrounding the existing farm steading. It is stated that the applicant has agreed to sell the steading subjects, Rannieston Steading, forming part of his title; it is the intention of the purchasers to develop this area into residential units; and in order to proceed with that proposal the existing access requires to be re-routed. The existing access would not be removed until the new route was complete. Under reference to the factors listed in section 100 of the Act, it is averred, in summary, that the steading buildings had become superfluous to the applicant’s farming business and the respondents no longer used the farmhouse as a permanent residence but rather for holiday lettings (Factor (a)); that neither the route of the existing access right, nor the standard of the road, conferred any particular benefit on the respondents’ property and the proposed variation would not cause any material inconvenience; the new route would be made up with a hard packed surface to the specification required by the planners; the route to the farmhouse would be considerably enhanced, and would allow almost an exclusive right of access over the new route, as opposed to the existing sharing with farm traffic (Factor (b)); that the existing right of access impeded reasonable enjoyment of the steading, the applicant being entitled to use or redevelop that building as he wished, subject to planning legislation; the applicant had attempted to negotiate with the respondents, but their demands were unreasonable in the circumstances (Factor (c)); that the purpose of the servitude was to allow vehicle and pedestrian access to the farmhouse and would remain intact (Factor (f)); that although there was no grant of planning permission, the planning authority and Historic Scotland had indicated support for the proposed redevelopment and variation of the access route subject to safe and resource efficient design (Factor (g)); that the applicant was willing to pay compensation subject to that being properly vouched (Factor (h)); that the applicant would retain ownership of the access route with an obligation for maintenance but would wish the owners to retain a 15% responsibility as already stated in their title; and none of the respondents’ arguments actually amounted to opposition and they were not entitled by opposing to procure a variation to maintenance arrangements (Factor (j)). The test of reasonableness was satisfied. The application was not premature, the existence of planning permission being a neutral factor (Ord v Mashford at 21B-D, 26D-E). The respondents’ references to prior negotiations were irrelevant (George Wimpey East Scotland Limited v Fleming & Others at 12). The respondents had not to date made any properly vouched or professionally justified claim for compensation. If such a claim was to be maintained, the matter should be continued for written submissions on that, but the applicants’ view was that there was unlikely to be any material detriment to the value of the respondents’ property.
[5] The respondents opposed the application. The entire route of the proposed revised access road connecting their property with the public road should be shown. The respondents had no means of verifying information given by the applicant, on whom the onus lay to establish the grounds on which the obligation should be varied. There was no explanation why the prospective purchasers required the route to be diverted or why the current route impeded development of the steading. The purchasers would require planning consent and the absence of such meant that the application was premature. That said, without prejudice to their rights in any planning process, the respondents did not in principle oppose the redevelopment of the steading buildings and the proposed variation of the servitude rights of access provided their interests were properly safeguarded. Under reference to the factors listed in section 100, in summary, the respondents contended that the applicant would have been well aware of the title condition when he bought the property; the steading might have become superfluous but there was not yet planning consent for any alternative use; the farmhouse remained a private dwellinghouse, it being irrelevant whether it was owner-occupied or used for holiday letting (Factor (a)); that the access right was essential to the respondents, any change was important to them and while they were not opposed in principle to variation of the route they would consent only if their interests were properly safeguarded; the applicant had, despite being requested, not clarified whether the remainder of the access road would continue to be used by agricultural vehicles; and there would be little or no benefit to the respondents (Factor (b)); that there was no planning consent for alternative use of the steadings and no explanation how the existing access route impeded redevelopment of them; the respondents’ requests in negotiation had been reasonable and the applicant had broken off negotiation (Factor (c)); that the purpose of the servitude right of access was to provide the only means of pedestrian and vehicle access between Mains of Rannieston Farmhouse and the public road (Factor (f)); that the respondents had no knowledge of any discussions with the planning authority, and so far as they were aware it was not true that Historic Scotland had been consulted (Factor (g); reference was made to suggestions in negotiation about conveyance by the applicant to the respondents of additional ground, and, inter alia, payment of a consideration of £2,000 as well as reasonable legal fees and outlays, these terms having been rejected by the applicant (Factor (h)); that the respondents had no fundamental objection provided certain conditions were met; they had no objection to continuing to bear a 15% share of the cost of future maintenance, but the applicant had carried out little or no maintenance of the access track, which was now very badly potholed, and an express maintenance obligation in relation to the whole of the access road should be imposed – the applicant had refused to discuss any such arrangement; and the revised proposal did not include any turning area (Factor (j).
[6] As the Tribunal understood it, the respondents wished the following matters dealt with in the event of the application being granted:-
(i) the benefited property should be defined to include the subjects of the 1993 disposition;
(ii) it should be made clear that the remainder of the route of the existing servitude remains unaltered;
(iii) the servitude right should be exclusive over the part of the route which is to be diverted, the entire purpose of the variation being to provide the respondents with a separate access independent from any development of the steadings: the respondents are entitled to know the applicant’s intentions in relation to use of this part of the route;
(iv) the new section of roadway should be metalled, since the existing access road was partly tarmacced and partly (the stretch around the steadings) concreted;
(v) Specific, “more robust”, maintenance arrangements in respect of the entire length of the access road should be introduced.
[7] The respondents also wished their concerns about further modification of the plans, since the application was lodged, borne in mind when determining the expenses of the application.
[8] The respondents have not submitted any claim for compensation under Section 90(6) and (7) of the Act.
[9] The applicant’s response on the matter of conditions which might be attached to the variation order was as follows:-
(i) Agreed;
(ii) All other parts of the access route will remain unaltered;
(iii) The existing servitude right, whose terms will remain otherwise unaltered, is non- exclusive;
(iv) the means by which the new access road is to be made up will be subject to the approval of the planners and has been stated; and
(v) Opposed – the application relates only to the section of access surrounding the steadings; the respondents would require to submit their own application for variation on this; in any event, there was an implied obligation on the applicant having regard to the terms of his title deeds; the respondents were attempting to secure a collateral benefit to which they were not entitled.
[10] We do not consider it necessary to make detailed findings of fact. Although the respondents said that they had no knowledge of some matters, there was no real dispute about the factual circumstances. The junction with the minor public road is around 250 metres from the steading buildings. That stretch of the access road is around 5 metres wide on average and has clearly been surfaced and patched in the past, but it has deteriorated quite seriously, with numerous deep potholes. The stretch around the steadings is wider, between 7 and 12 metres, but is currently in use, mainly by the agricultural contractor, with vehicles and equipment lying on the roadway, which at that point is concreted but, again, considerably deteriorated with potholes. The farming is all arable and the traffic apparently light except during the sowing and harvest periods. The open gateway into the respondents’ private drive is situated immediately off the roadway at the south-west corner of the steading. The respondents’ drive is about 2.8 metres wide.
[11] We accept that the applicant proposes sale of the steadings area for residential development and, on the basis of the plans produced, that the existing access route provides an obstacle to the development as proposed. The original plan of the proposed re-routing appeared to leave a gap at the point where the diverted route would rejoin the original access road; it appeared to show some of the respondents’ land within the proposed development; and, as became evident at the site inspection, it has been departed from. No alternative plan was then available. The Tribunal accordingly requested the applicant to provide an up-to-date plan, giving the respondents the opportunity to comment on it. The now proposed alternative access road runs off some 50 metres north of the main steading building at an angle of approximately 45 degrees and passes round to the west of the steading. It does not link with the existing gateway into the respondents’ property but hits the respondents’ boundary some 15 metres up the drive, where it will then be linked up with their drive at the applicant’s expense. A detailed specification Plan, No. GM/RH-002, shows a width of 5 metres, with one metre of grass verge, with a new post and wire fence in the middle of the verge, on either side. There will be tree and shrub planting between the access road and the steadings. The surface will not be metalled but will comprise compacted stone foundations and recycled concrete chip finish. There will be no entrance to the adjoining field from the new section of access road. Steadings home owners will not require access to the new section. Overall use of the new section will be less than that of the existing section around the steading building. There is a possibility of occasional parking of cars on the new stretch, in the same way as the occasional vehicle might at present for some reason be parked on the access road leading from the public road (or indeed on the public road, which is of a similar width), but this is most unlikely to create any significant problem.
[12] Section 98 of the Act requires the applicant to satisfy us of the reasonableness of the application in the circumstances, and we are required to have regard to the factors listed in Section 100. These include, at section 100(j), any other factor which we consider material. Each case requires to be considered on its own facts and circumstances.
[13] We reject the submission that the application is premature. The legislation does not require applicants whose proposals would require planning permission to obtain that first. Applicants have to decide in what order to take matters. If they proceed before obtaining planning permission, there is a possibility that there will be an uncertainty about their application and that that may count against it, or that opponents might be able to argue that the prospects of obtaining permission are poor and that that is of some relevance. Here, at least with the revised plans, there is no uncertainty at all about what is proposed, and there is uncontradicted evidence that the prospect of obtaining permission is good. The applicant also correctly points out that planning permission is of limited relevance anyway in a purely private issue.
[14] It is necessary first to consider the position in relation to some of the conditions sought by the respondents in the event of our granting the application, in order that the reasonableness of the application can be judged in the light of the circumstances which would prevail. Firstly, we can see no justification at all for varying the non-exclusive right of access to an exclusive one, even if we had power to do so. That would be to convert the applicant’s land, over which the respondents have a right of access, into a road of which the respondents would, in perpetuity, have the exclusive use – in effect, an extension of their private drive, albeit their share of the cost of maintenance would be only 15%. So the application has to be considered on the basis that the new stretch of access road will not be exclusive to the respondents.
[15] Secondly, on similar reasoning, we can see no justification for the imposition of new, presumably more onerous, maintenance obligations on the applicant as owner of the servient tenement. Beyond apportioning the costs, the servitude grant does not make any express stipulation about maintenance, leaving any issue about that to be resolved under the general law. There is no proposal by the applicant to vary the nature of the right, the only application being to vary the precise route. This would in our view amount to the imposition of a new condition or burden on the applicant. Section 90(8) makes this competent, but only if the applicant consents (Section 90(11)). The applicant does not consent, so we could not competently do this even if we considered it appropriate. So, again, the application has to be considered on the basis of the existing position in relation to maintenance obligations.
[16] In relation to the surface of the alternative access route, we are, again, not in a position to order the applicant to provide a better surface. What we can and will do, however, is to consider the application on the basis of the proposed compacted stone, rather than metalled, surface. The comparison between the proposed alternative route and the existing route is clearly relevant to reasonableness, under Factor (b), because the quality of the existing access, in comparison to that proposed, is a factor in assessing the benefit of the existing right.
[17] Turning to our look at the factors listed in section 100, our consideration of those mentioned is as follows:-
(a) It is not clear to us that there has been any change of circumstances of significance, although if (as to which the evidence was not clear) there has been a change to arable since the condition was created, that no doubt supports the suggestion that the steading buildings have become superfluous or at least required less. We agree with the respondents that it is of no relevance whether their property is owner-occupied or used for letting.
(b) Clearly, the right of access is of fundamental importance to the respondents’ property, but that is not the issue. The issue is the extent of benefit from the existing access route. In our view, when consideration is given to the alternative proposed, there is no benefit of significance being lost. The present stretch around the steadings, although of course a typical rural situation, cannot be especially attractive to the proprietors of the respondents’ property and their visitors. Further, although the respondents will not have exclusive use of the new access road, and although the present volume of traffic seems light, at least for most of the year, the new stretch of road will in practice lead only to their house. Very occasional incursions by agricultural vehicles, or by vehicles belonging to visitors to the new steadings houses, i.e. overspill from their parking provision, seems to us to compare favourably with the existing situation. In any event, the right is only a right of access, not one of privacy. As to the surface, it might be sufficient protection that the surface will require to be to the satisfaction of the planners, but in any event the applicant has now provided plans showing the specification. The variation would only take effect once the new access road was completed in accordance with that specification. Bearing in mind that this stretch of road will be used almost entirely for traffic serving one private house, we think that the proposed surface is reasonable. The position regarding maintenance of the existing access road will not change. Overall, we do not think that the existing right gives the respondents any benefit of significance in comparison with the right as it is proposed to be varied. We would add that the respondents’ repeated indication that they are not really opposed to the proposals in principle lends support to the view which we have reached on this.
(c) On the other hand, it is clear that the right as it exists, substantially impedes enjoyment of the burdened property. Subject to planning, the applicant is entitled to use the area around the steading buildings as he likes, including selling it as ground surrounding a residential development. The respondents complain that the need to re-route the access has not been explained. We do not agree, because it seems clear to us that an existing access road for other traffic immediately beside the houses considerably diminishes the attraction of the development – if indeed it would get planning on that basis – but it does not anyway matter: the applicant wishes to use his land in that way. As it stands, the burden including the existing route has required him to request, negotiate (apparently at some length and involving various other matters), towards, but ultimately fail to get, the respondents’ consent.
(e) Neither side has placed any weight on the age of the condition, and nor do we.
(f) The parties appear agreed on the purpose of the title condition, viz. to provide pedestrian and vehicle access to the respondents’ property. As it seems to us, the applicants’ proposals do not interfere at all with that purpose.
(g) As we have indicated, there is no planning consent, although the letter from the planning authority does seem to suggest that this will not prove to be a problem.
(h) The applicant indicates a willingness to pay compensation if that is properly vouched. That of course is little different from the position of most applicants, since the legislation provides for compensation if the statutory requirement for substantial loss or disadvantage is satisfied. The respondents mentioned under this heading the negotiations regarding a transfer of land, or a payment of £2,000 plus legal fees, but there is nothing to indicate that loss or disadvantage to that extent would be suffered by them as owners of the benefited property. This factor is neutral.
(j) We note that the applicant is willing to continue to accept 85% liability for the cost of maintenance. This would seem a very favourable provision for the respondents in relation to the part of the access road which is now unlikely to be much used by others. We have considered the relevance of the neglect of maintenance over the years, but it seems to us that that matter is simply extraneous to the issue of reasonableness of this application. We can well understand the respondents’ irritation about it, but the simple position is that their remedy, if any, in relation to this, lies elsewhere. The applicants referred at some length to the attempts at negotiation. This might sometimes have a bearing on questions of expenses but the present issue is the reasonableness of the application, i.e. the proposal to vary the access route. If anything, what the respondents have told us about the negotiations increases our impression that they have in fact been using the applicant’s need for a variation of this right to try to extract extraneous benefits for which the legislation does not provide. We do not doubt the respondents’ sincerity in this matter, and we do not hold this factor in the balance against them, but it does not in our view count against the reasonableness of the application.
[18] Overall, it appears to us that the only factor which has any weight in the issue of reasonableness is Factor (c), the burden on the applicant. The clearly important purpose of the title condition will be maintained. The respondents will in our view not lose any benefit which they presently receive from this right. None of the other factors seems to us to point one way or the other, with the possible exception of the applicant’s willingness to continue to be responsible for an 85% share of the maintenance liability, although this was no doubt unavoidable and does not carry much weight. Since the access provision as it stands represents a substantial obstacle to the applicant’s proposal for the use of his land and there is no factor pointing the other way, we are satisfied that the application is reasonable and ought to be granted on the basis that the order varying the condition will only take effect once the alternative route as shown on the up-to-date plan has been constructed in accordance with the specification which has also been provided.
[19] As has been seen, we are not prepared to attach conditions of the sort sought by the respondents. They asked that it be made clear that the remainder of the access route remains as at present – that is the effect of our order varying the right to the extent of altering the route, and does not need to be expressed.
[20] That leaves one final matter, on which the parties are in fact agreed. The respondents acquired a small additional strip of ground at the front of their house from the applicant, but the title to that did not express any right to access. Technically, we are not sure that we have jurisdiction to do anything about this. The new declaratory jurisdiction under Section 90(1)(a)(ii) does not extend to servitudes. We do not think that we can do anything more than narrate in our Order the parties’ agreement that the access right benefits this land also. For what it is worth, we would express two views: firstly, we doubt if this matter is of any practical significance because it seems inconceivable that this ground would ever be conveyed to anyone other than the owner of the respondents’ house (unless perhaps it for some reason went back to the owner of the surrounding land, in which case there would be no problem); secondly, it seems to us that in the unlikely event of the matter ever being tested, the servitude might well be established despite the lack of express grant in favour of that land.
[21] For these reasons, we grant this application to vary the servitude right of access to the extent of varying the specified route in accordance with the plans Nos. GM/RH-001 and 002, to take effect upon completion of the construction of the alternative access route as shown and specified on said plans. Any issue in relation to expenses will be disposed of on the basis of parties’ written submissions.
Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties 25 April 2008
Neil M Tainsh – Clerk to the Tribunal