1. This is an opposed application under Section 90(1)(a)(i) of the Title Conditions (Scotland) Act 2003 (“the Act”) to discharge a servitude right of access across one side of the applicants’ property to the respondent’s property, a modern house built to the rear of the applicants’ on ground sold by the applicants’ predecessors in title. This was the only available access when the respondent’s house was built, but the applicants rely on the fact that the respondent’s property now also includes another servitude right of access which has been developed as such and which might now be regarded as the respondent’s primary access.
2. Having considered the relevant factors referred to by the parties, the Tribunal is satisfied that it is reasonable to grant this application, on the basis of the applicants’ undertaking to permit reasonable signage directing anyone approaching the respondent’s property to the new entrance.
3. By Disposition by William Dunbar and Mrs Agnes Dunbar in favour of Brian Thomson dated 16 July 1997, registered on 23 July 1997, there was conveyed, along with the plot of ground on which the subjects 74 Lower Bathville, Armadale, Bathgate, have been built, a heritable and irredeemable right of access over an area of ground within the subjects 80 Lower Bathville, said servitude right being registered along with the title to 74 Lower Bathville. The applicants John Colecliffe and Gaynor Ann Colecliffe are the current proprietors of 80 Lower Bathville, under certificate WLN16275. The respondent, Richard Thompson, is the current proprietor of 74 Lower Bathville, under Title Sheet WLN13657.
4. The applicants seek discharge of the title condition. In terms of Section 98 of the Act, the application is only to be granted if the Tribunal are satisfied, having regard to the factors set out in section 100 of the Act, that it is reasonable to do so. There is no application for compensation.
5. The application was heard at an oral hearing on 18 February 2009. The applicants were represented by Mr Simpson of RSC Solicitors, Edinburgh. The applicant Mr Colecliffe gave oral evidence. The respondent, who was not personally present, was, with the Tribunal’s permission, represented by his wife, Rebecca Thompson. The applicants lodged certain documentary productions. The respondent relied on a written statement signed by him and Mrs Thompson, who also gave oral evidence. The Tribunal also carried out a site inspection.
6. The applicants purchased their house at 80 Lower Bathville, Armadale, in 1998. No. 80 comprises the larger part of a building which also includes shop premises, No. 76, on the west side of the building. These properties, together with garden ground mainly to the rear (north), had originally formed one property. In 1997, a rectangular building plot to the rear of the property was sold to a Mr Brian Thomson, along with the servitude right of access (“the original access”) which is the subject of this application. The proprietor of No. 74 was required to pay a one half share of the cost of maintenance and renewal of the mutual access; parking or obstruction of the access was prohibited; and access was to be exercised so as to cause as little inconvenience as possible to the proprietors of No. 80. Mr Brian Thomson then built No. 74, which is a detached family house.
7. The properties are, on the east side, close, but not adjacent to, the junction between Lower Bathville and Mayfield Drive, being separated from Mayfield Drive by a substantial grass verge which is split by a diagonal concrete pathway. Mr Thomson built the house at No. 74. The grass verge being owned by West Lothian Council, No. 74 had at first no access from Mayfield Drive, and no other access. There is no rear lane.
8. In 1999 Mr Thomson acquired from West Lothian Council by Deed of Servitude a servitude right of pedestrian and vehicle access (“the new access”) across a rectangular strip of the grass verge (beyond the point at which the diagonal path met the pavement of Mayfield Drive) on certain conditions. The access was only to be to 74 Lower Bathville; vehicle use was restricted to motor cycles, cars and light commercial vehicles; and Mr Thomson was required to form a vehicle access to Mayfield Drive with footway crossing.
9. The respondent Mr Richard Thompson (no relation) acquired No. 74, along with both servitude rights, i.e. the original access and the new access, which, subject to the associated burdens, form part of his registered title, WLN13657, in 2003. In 2006, the respondent purchased from West Lothian Council another small area of the grass verge, adjacent to the new access. That area is presently on a separate title, WLN37365, and is the subject of a burden restricting its use to use as garden ground ancillary to No.74. It has, together with the new access driveway, been enclosed and fenced and incorporated into the garden of No. 74.
10. The original access is over a rectangular strip some 3.4 metres wide along the west boundary of ground belonging to 80 Lower Bathville. This drive runs between a wooden fence to the west, and, to the east, initially the gable wall of 76 Lower Bathville and thereafter the edge of the ground to the rear of the building, 76-80 Lower Bathville. The access appears to have been the original driveway leading from Lower Bathville to the rear of the building. Lower Bathville is a busy street running through Armadale. 76 Lower Bathville is a small general store, outside which vehicles are often parked. There is a local bus stop immediately to the west of the opening of the driveway. The applicants erected a wooden double gate, including an inset pedestrian gate and also having a low fixed top beam at a height of around 2 metres so as to obstruct access by any higher vehicles, around one third of the way along the drive. The surface of this driveway consists of somewhat neglected hard core and gravel. At the end of the driveway a further double wooden gate gives access to a parking area and single garage at the front entrance to No. 74.
11. Mayfield Drive is a quieter cross street. A double wooden gate leads from the street to the new access driveway, which is monoblocked and which leads directly onto the same parking area and garage.
12. Relationships between the applicants and the respondent have deteriorated, apparently as a result of a degree of dispute and some acrimonious incidents between them. The respondent has not recently used the original access as a vehicular access. At least some pedestrian visitors to No. 74 have continued to use the original access. The applicants have affixed two signs on the outside of the first set of gates on the original access, i.e. visible from Lower Bathville – ‘Please do not park in front of the drive as it is in use 24 hours a day’ and, on the pedestrian inset gate, ‘Please close the gates behind you’. Two signs indicating ‘74’ are affixed at the gate leading from the original access in to No. 74, but these are not visible from Lower Bathville.
13. Mr Simpson’s submissions, under reference to the factors listed in section 100 of the Act, and on the basis of the evidence, are summarized as follows:-
(a) The provision of the new access amounted to a clear and substantial change of circumstances, the original access being now not used or not used to the same extent and the new access being easier to use.
(b) Accepting that the original access provided a benefit, the significance of that was diminished by the greater benefit enjoyed from the new access.
(c) The difficulty of having to deal with neighbours, and the inability to park on the access driveway, impeded the applicants’ enjoyment of their property.
(e) Consideration of the length of time since the condition was created was tied in with factor (a).
(f) The purpose of the condition, to give access to No.74 when it had no other access, had gone.
(g) had no application, there being no need for planning or other consent.
(h) Compensation had never been requested. There was no evidence to support any reduction in value. The applicants were, however, prepared to provide or meet the cost of signage drawing attention to the new access.
(j) The difficulties which had actually been experienced with the respondent’s exercise of the access were also material.
Mr Simpson further submitted that expenses should ‘follow success’.
14. Mrs Thompson’s submissions on behalf of the respondent were (understandably) less focused. Their joint written statement emphasised difficulties allegedly put in their way by the applicants and that it was these rather than anything else which had led them to use the new access. The new access lacked direct access to the respondent’s garage. The respondent wished access to Lower Bathville in order to retain a Lower Bathville address. If the original access was lost, this would probably result in a change of address. Values in the Mayfield area were lower. The additional land which had been bought did not provide access. The respondents did not wish to be in the precarious position of having a single access through land which they did not own. The purpose of the original access provision remained the same.
15. For this application to succeed, we require to be satisfied that it is reasonable. We have to have regard to the statutory list of factors, in so far as these have any application to the circumstances. What we have to do is to consider the various factors and weigh the issue of reasonableness up as a whole.
16. The breakdown of relationships between the parties is unfortunate. We have the impression that both parties may have been more intent on furthering the dispute rather than looking objectively at the situation. It is not our function to apportion blame. Rather, we should look objectively at the relative positions of the two properties in relation to the servitude which the applicants wish discharged.
17. Looking at matters in this way, we have a very clear general impression that the original access is very much a second best when compared with the new, effectively private access now enjoyed by the respondent as part of the title to No. 74. The opening into the driveway from Lower Bathville is not very satisfactory. Putting out of our minds the obstruction created by the double gates and low barrier erected by the applicants the fact nevertheless is that having always to consider the interests of the neighbours who own the ground is bound to involve a degree of inconvenience which simply does not arise in relation to the new access. We do not consider that a prospective purchaser, looking at the matter objectively and knowing that the title included the new right of access, would see any particular benefit or value in the access from Lower Bathville.
18. Turning specifically to the statutory factors, we often look first at the purpose of the title condition when it was created (factor (f)). This was, clearly, to provide access to No. 74. That purpose can in our view be fulfilled just as well, if not rather better, by the new access.
19. We accept that there is a material change of circumstances (factor (a)) in relation to the benefited property, in that at the time when the condition was created there was no alternative access, but now there is.
20. As far as the extent of benefit to the benefited property (factor (b)) is concerned, it does not seem to us that the original access now provides any significant benefit. Theoretically, of course, having two accesses may be better than having one, but there is nothing very unusual in having only one, which was the situation which existed when the condition was created. We have already recorded our impression as to the comparison between the two. The original access, although entirely viable if operated reasonably, is not particularly attractive. The applicants need not necessarily have erected an additional gate, but there seems to us to be nothing unusual about that and it must be within reasonable contemplation that burdened proprietors would do so. Accordingly, regardless of the particular difficulties which have arisen, it would always be likely that exercising the original access right would involve negotiating two sets of gates. At a more general level, the original access right involves an ongoing need to co-operate with neighbours, by contrast with the new access, where the landowner (the Council) has no ongoing interest in the access arrangements. It is also not possible to park in the original access driveway, as it is in the new access. Neither access is particularly suited to heavy traffic, for example delivery lorries, and it would seem to us that parking such vehicles beside the gate in Mayfield Drive would be distinctly easier, and no more distant from the house, than parking close to the entrance in Lower Bathville. The site of the garage at No.74 no doubt reflects the original access route rather than the new one, but we do not agree that there is any substantial difference. Again, some pedestrians for whom it would be quicker to use the original access would be slightly disadvantaged, but the difference in distance, coming from further east on Lower Bathville, is not particularly significant.
21. The respondents say that they are concerned about a change of address. It was, however, an assumption on their part that this would be necessary: no evidence was produced that it would be so. We would have thought that the main consideration for postal authorities was signage and it should not be difficult to ensure that someone in Lower Bathville is directed to the new entrance to No. 74.
22. Although they do not seek compensation, the respondents suggested that there would be a reduction in the value of No. 74. We think that that depended on the assumption of a change of address, but even if the assumption were correct we simply did not hear any concrete evidence to support the claim. Again in the light of our impression of the position, we feel it unlikely that there would be such a valuation effect.
23. For these reasons, we simply do not think that having the original access in addition to the new access can be seen as much of a benefit to proprietors of No. 74. We should add that we base this view on our own impressions, not on the fact that the respondent and Mrs Thompson have apparently not used the original access for some time, as it is at least possible that this has resulted from the applicants’ somewhat intransigent approach.
23. As far as the extent of the burden on the burdened property (factor (c)), is concerned, we think that this is limited. There is no question of freeing up land for an alternative use, as the applicants also make use of the driveway. However, the ability to park, or the potential to make other use of the driveway or part of it (perhaps for a garage or other building) would be of some benefit. Further, and again putting out of our minds the particular dispute which has gone on with the respondent, the fact of having to arrange matters so as to enable the neighbours to exercise the access right is burdensome: it is obviously preferable to have complete control of this area of the property.
24. Factor (g), whether the condition prevents a use for which there is planning consent, favours the respondent’s position: there is no such consent and there was no suggestion on behalf of the applicants that there was any likelihood of development.
25. We do not think that willingness to pay compensation (factor (h)) is a factor of any materiality in this case. What is here under consideration is any possible effect on the value of the burdened property, i.e. No. 74, rather than the benefited property. As we have indicated, we do not accept that the value of No. 74 is likely to be affected. We do note the applicants’ willingness to pay the minor expense of appropriate new signage.
26. The applicants wished us to take account, as some other material factor (factor (j)) of the difficulties which have actually occurred between the parties. Beyond acknowledging that the necessity of co-operating with any benefited proprietor is slightly burdensome, we are not prepared to give any weight to the individual difficulties between the parties. It is in any event by no means clear to us that the applicants did not contribute to the difficulties.
27. Weighing all this up, we consider that the balance of reasonableness favours the applicants. This servitude is burdensome, although it is not apparently preventing any alternative use of the burdened property at present. The development of the new access is a clearly relevant change of circumstances, resulting in our view in the respondent being substantially better placed as regards access than the original proprietor of No. 74. The original purpose of granting the servitude can be fulfilled by the new access right. Against these things, we have not accepted that the servitude confers any significant benefit to the respondent or that its loss will affect the value of his property. The respondent is concerned that he will only have access through someone else’s property, but he does have a servitude right which is registered as a part of his title.
28. In short, we are satisfied of the reasonableness of this application, provided that the applicants undertake, as it was indicated to us that they were prepared to do, to permit reasonable permanent signage directing visitors to the new access (e.g. ‘Entrance to 74 Lower Bathville by Mayfield Drive’), to be affixed on the applicants’ land at the entrance to the original access and so as to be reasonably visible from Lower Bathville. Section 90 of the Act does provide a more formal way of achieving this, by making the grant of the application conditional on the applicants accepting a new real burden, but we do not think it should be necessary to go to that length on a matter such as this. The applicants will be asked to confirm this undertaking and that they will take all reasonable steps to ensure that there is no interference with the sign once erected. Provided such confirmation is received, the Tribunal will proceed to issue its Order allowing the application. It will be seen that we are not suggesting that the applicants also undertake to meet the cost of the new signage. This is because, as will be seen in the next paragraph, we have decided not to make any award of expenses in favour of the applicants and in that situation it seems fair and more straightforward to leave the respondent to bear this expense.
29. We have a discretion in relation to the expenses of the application, although we are required by Section 103(1) of the Act to have regard, in particular, to the extent to which the application or any opposition to it has been successful. In this case, the applicants have clearly succeeded. However, we think that this is a case in which they should bear their own expense. It seems to us that this application became necessary as a result of the unfortunate loss of goodwill between the parties. It may well be that there is blame on both sides, and it is not for us to judge that, but we certainly did not have the impression that the applicants were blameless. They appeared to us to have adopted an intransigent and almost intimidatory approach when a more reasonable approach might perhaps have avoided the need for these proceedings (although it is right to mention that Mr Simpson presented the applicants’ case with fairness and courtesy). In the circumstances, we have decided to make no award of expenses.
Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 1 April 2009
Neil M Tainsh – Clerk to the Tribunal