Heritable property – Title Conditions – Variation – Servitude right of access – Proposed variation of route to facilitate residential development of farm steading buildings – Reasonableness – Prematurity – Adequacy of evidence – Respondents seeking regulation of various matters if application granted – Title Conditions (Scotland) Act 2003, Sections 98, 100

Jensen v Tyler and Another
25 April 2008

The applicant sought variation of the route of a servitude right of access across farm lands. One section ran round some farm steading buildings before reaching the respondents’ property. The applicant wished to sell the steadings and some ground to a housing developer. He contended that there had been a substantial change of circumstances in relation to use of the steading; the existing access route was of no particular benefit to the respondents; the existing right impeded enjoyment of his property; the purpose would remain intact; the authorities had indicated support for the proposed development and variation of the access route; and the respondents were not entitled by opposing to pursue variation of the maintenance arrangements. The respondents indicated that they were not necessarily opposed to variation of the access, but opposed the application, arguing that they had no means of verifying information given by the applicant; the application was premature; and they would consent only if their interests were properly safeguarded, referring to certain unsuccessful negotiations. The respondents sought regulation of a number of matters in the event of the application being granted: they wished the new access route top be metalled; they wished the existing provisions in relation to repair and maintenance of the whole access road improved; they sought exclusive access over the diverted part of the route; and they wished the benefited property defined so as to include a small part of their land held in a separate title without an express grant. The application was dealt with on the basis of written submissions and a site inspection.

Held, allowing the application, the facts were sufficiently clear. The existing access route was clearly an obstacle to development of the steading area. The application was not premature: the legislation did not require applicants to obtain planning permission first, and there was no uncertainty about what was proposed. It was not clear that there was any change of circumstances of significance, but considering the other statutory factors, particularly (c), the application was clearly reasonable. The variation should take effect on completion of construction of the new section of road in accordance with the applicant’s current plan (the specification of which, viz compacted stone and recycled concrete chip, was reasonable in all the circumstances). There was no justification for varying the provisions about repair and maintenance, or granting exclusive use to the respondents, even if the Tribunal had power to do these things without the applicant’s consent. The Tribunal’s Order would reflect, so far as appropriate, the parties’ agreement that the further portion of land also enjoyed the benefit of the servitude.

Authorities referred to:-

George Wimpey East Scotland Limited v Fleming and Others 2006 SLT (Lands Tr) 2
Ord v Mashford 2006 SLT (Lands Tr) 15

See full decision:  LTS/TC/2007/35 (Merits) and LTS/TC/2007/35 (Expenses)