1. This application concerns two types of servitude right created when a parcel of agricultural land was divided. Firstly, servitude rights of access were created over a route, which had not been physically made up, across land now owned by three parties. The applicants seek discharge of the access right in which they are the servient or burdened proprietors and one other owner, the respondents, are the dominant or benefited proprietors. Secondly, rights to install and maintain septic tanks and soakaways, plus related access, were created. The applicants seek variation of one of these rights, in which, again, they are burdened and the respondents are benefited, so as to limit it to septic tanks and soakaways already installed. Both aspects of the application are opposed.
2. In relation to access, the Tribunal broadly considers that as the scheme for the access road was mostly not implemented and does not, in our judgment in the particular circumstances, bring any substantial benefit to the respondents, it would be appropriate to bring it to an end. On the basis that the applicants agree to discharge the reciprocal access right of which they have the benefit and the respondents are burdened, it would be reasonable to grant the application for discharge. The respondents have not submitted any claim for compensation, but should, in the Tribunal’s view in the particular circumstances, have a brief opportunity to do so as they stand to lose the benefit of and may require to replace one stretch of access road which was in fact made up at their expense.
3. In relation to the septic tank rights, the Tribunal has not been satisfied that it is reasonable to grant the variation sought and will refuse the application.
4. The application will be continued for a short period to enable the applicants to advise whether they agree to discharge the access right in their favour, and also for the respondents to consider their possible claim for compensation. It would of course be desirable if parties could reach agreement on these matters.
5. The subject access right, which the application seeks to have discharged, was created by Disposition by Thomas Steven Anderson and Mrs Brenda Jean Anderson in favour of the respondents, John Lorenzo Lee and Mrs Joan Lee, dated 18 March and recorded in the General Register of Sasines for the County of Caithness 10 April 2001. The respondents’ property is now registered in the Land Register of Scotland under Title Number CTH366, this right being described as follows: “(One) access to and egress from the subjects in this Title by the parts of the shared access roadway tinted … brown on the Title Plan.” The Burdens section of the title sheet for the applicants’ property, Title Number CTH645, narrates the subject access right. The same Disposition created linking access rights in favour of the disponers, who at that time retained the adjoining subjects. Those subjects were subsequently acquired by the applicants. Accordingly, the applicants’ title contains a right of access over an area approximately 30 metres long, adjoining the route of the subject access right, within the respondents’ property towards its north east corner. (The applicants have a similar right of access over a central stretch of the shared access route, within the property of the third owners, who are, however, not involved in this application.) None of the titles contains any obligation to make up or bear the expense of making up any of the ‘shared access roadway’, which did not physically exist when the rights were created.
6. The Disposition of 2001 in favour of the respondents also conferred the following right, now entered in the Property Section of CTH366 and narrated in the Burdens section of CTH645:-
“a right to install a septic tank or septic tanks and soakaways in and through said adjoining land with all necessary rights of access for the installation and maintenance of same thereto subject to the payment of surface damage caused.”
7. The application for discharge of the respondents’ access right and variation of the respondents’ septic tank and drainage right was heard at an oral hearing at which the applicants were represented by Mr Macdonald, Solicitor, of Messrs John Y. Robertson, Solicitors, Hamilton and the respondents by Mr O’Rourke, advocate, instructed by Messrs Macleod & MacCallum, Solicitors, Inverness. Mr Macdonald called the applicants, Carol Graham and Anthony Birdsall, as witnesses. Mr O’Rourke called the respondent John Lee, and Geoffrey Shaw, the third proprietor at the location (who does not have any right of access over the applicants’ land and was not a respondent), as witnesses. Both sides lodged documentary productions. The Tribunal made an unaccompanied site inspection.
George Wimpey East Scotland Ltd v Fleming 2006 SLT (Lands Tr) 2
Ord v Mashford 2006 SLT (Lands Tr) 15
Smith v Elrick & Gerrard LTS/TC/2006/14, 20.11.2006
Council for Music in Hospitals v Trustees for Richard Gerald Associates 2008 SLT (Lands Tr) 17
Jensen v Tyler LTS/TC/2007/35, 25.4.2008
8. In 1998, a Mr and Mrs Anderson jointly acquired an area of ground at Upper Bowertower, Bower, Wick together with a right of access from the public road. The ground was divided into three lots. Lot 1, on the south side, extended to around 12 acres. Lot 2, on the north side, extended to around 20 acres. Lot 3, a house building site in the centre and contiguous with each of the other lots, extended to around 0.5 acres. Mr and Mrs Anderson sold Lots 1 and 3 to the respondents John Lorenzo Lee and Mrs Joan Lee with entry on 19 March 2001. Lot 2 was initially retained. Reciprocal access rights across a proposed “shared access roadway”, of which the subject access right is a part, were created. This access route was to start at the entrance on the east side of Lot 1 and run broadly east to west, first through Lot 1 near its northern boundary, then through Lot 2 beside its southern boundary (the “eastern section” of the subject access right), then through Lot 3 beside its southern boundary and finally through Lot 2 again beside its southern boundary (the “western section” of the subject access right). The septic tank and drainage rights were also then created. Mr Anderson disponed his pro indiviso share of the retained land, Lot 2, extending to around 20 acres and with the corresponding rights and burdens, to Mrs Anderson. Mrs Anderson sold Lot 2 to the applicants Carol Graham and Anthony James Birdsall with entry in December 2003, although this conveyance unfortunately conveyed a different access right, which Mrs Anderson had no right to convey, across Lot 1, causing some misunderstanding. The respondents subsequently sold Lot 3, on which a house with garden, known as ‘Dunnone’, had been built, to a Mr and Mrs Shaw, with entry in December 2004.
9. The applicants did not take up residence on their land until October 2006. It is now known as Stonefield Farm, a smallholding which they farm on a part-time basis. The livestock includes from time to time sheep, pigs, horses and chickens, with fodder crops and grass grown for livestock. Most of the land is in cultivation and slopes gently towards the north west. The holding comprises a number of fields forming a block of land roughly rectangular in shape lying on an east/west axis. The southern boundary with the respondents’ and the Shaws’ property is irregularly shaped, with the “Dunnone” house site intruding and an approximate triangle at the south east corner included in the respondents’ land at its entrance. A shared access roadway runs southwards from the public highway and this defines the eastern boundary of the applicants’ land. Since they purchased the land, the applicants have created a farmstead towards the north east corner with a barn and other farm buildings erected and a farmhouse currently under construction.
10. The southern boundary with the respondents’ property is defined by a post and wire stock fence. It is in this area that differences have arisen between the parties. Concrete foundations to take uprights for a proposed barn have been formed by the applicants to the north of this shared boundary and approximately opposite a caravan site within the respondents’ property.
11. The respondents’ land lies to the south of the applicants’. The boundary is fenced except around the Shaws’ property, Dunnone. Most of the respondents’ ground is permanent pasture but the westmost area is unimproved rough pasture/moorland. The respondents have converted part of an old farm steading on the east side of their property into a dwelling, known as ‘The Croft’. A static caravan is located nearby. About 70 metres to the west of the steading is a newly built toilet block serving an adjoining caravan site developed by the respondents with stances for 5 touring caravans. At its nearest point the caravan site is about 20 metres from the applicants’ land. It was formed in 2002 and 2003. A levelled and bottomed area of ground was created. Planning permission was not required since the site is only for 5 touring vans. There are no current plans to extend the caravan site although the respondents are considering re-positioning the static caravan. Planning permission and building warrant for the construction of the new toilet block were granted in about August 2008. To the west and north of the caravan park, on both sides of the access road to Dunnone, are small quarry ponds, areas of water filled, disturbed ground from which stone was apparently in the past quarried to a depth of around 3 metres. Part of the northmost quarry pond extends into the applicants’ ground, close to the boundary with Dunnone. The westmost field of the respondents’ land, now known as ‘Greenacres Croft’, is moorland/rough pasture. Planning permission has been obtained for one house located in this enclosure. Consent was granted by Highland Council on 30 June 2008 for the approval of various reserved matters including the erection of the house, installation of a foul drainage treatment plant and upgrade of the vehicular access.
12. Dunnone, a modern detached house with garden ground, occupies a roughly square site approximately 60 by 60 metres, to the south of Stonefield Farm and ‘intruding’ into the appellants’ southern field. It was acquired by Mr and Mrs Shaw in December 2004 and gains access from the “caravan site road” referred to below. The Shaws’ title is burdened by the applicants’ servitude right of access by the proposed shared access roadway, along and within the southern boundary of Dunnone although outwith its garden. The Shaws allow the respondents access to their western fields over this stretch of the access route.
13. The main shared access road which runs down the eastern boundary of the applicants’ land turns in a westerly direction and enters the respondents’ land. When they acquired their property in 2001 the respondents had minimal made up access across their property. The disposition in the respondents’ favour envisaged a new road being created along the southern boundary of Lot 2, now the applicants’ property. The respondents entered into informal arrangements with Mr Anderson whereby Mr Anderson undertook the work of forming certain roadways at the respondents’ expense. In furtherance of these arrangements, two stretches of roadway were made up by removing topsoil, filling with hardcore and finishing with finer stone material. These were, firstly, the caravan site road, which is not part of the subject access right and not provided for in the 2001 Disposition, and which leads on from the main access road, through the respondents’ land and curving in a westerly direction, through the site on which the caravan site was developed, and on to Lot 3, the Dunnone site; and, secondly, continuing on from that road, a stretch on the Dunnone site and then approximately three-quarters of the western section of the subject access right, leading from the Dunnone site to a point at which access could be taken to the westmost field on the south side of Lot 2.
14. When the Dunnone site was split off from the respondents’ property, it was given a right of access over the caravan site road, i.e. not using the subject access right. Thus the respondents and the Dunnone proprietors, but not the applicants, were entitled to use the caravan site road, and the respondents could also link up with and use that part of the western section of the proposed shared access roadway. The eastern section of the proposed shared access roadway, and the western end of the western section, were not made up and it would not be possible to drive ordinary vehicles across either of these areas.
15. In August 2007, following numerous difficult incidents, all three proprietors reached a verbal understanding involving each giving up rights over the others’ land. There was, however, ultimately no agreement as to the extent of the rights concerned. Before August 2007, the applicants had taken steps to frustrate access to the western section of the subject access right. After that date, apparently understanding that the respondents had agreed to give up this access right, the applicants excavated the material which had been put in place to form that section of roadway, removed some material and dumped the remainder into piles. They prevented access by erecting an electric fence at the point where the access route passed from Dunnone onto the western section on the applicants’ land. They also fenced off and blocked the access route at the start of the eastern section of the subject access right and used that area of their land for stock.
16. Three septic tanks with soakaways running with the slope to the north have been installed in the area of the boundary on the north side of the respondents’ property. A septic tank serving The Croft is situated on the line of the proposed shared access roadway, within the respondents’ property, beside the boundary with the applicants’ property. The respondents had this septic tank concreted over to enable the applicants to use the access route if they chose to, but the applicants subsequently blocked that route. The septic tank for Dunnone lies within its garden ground, on its north side, with, apparently, a soakaway running into a nearby field drain. The caravan site toilet block erected by the respondents also has a septic tank and soakaway on the respondents’ land. This soakaway area was originally intended to cross over the boundary and include some of the applicants’ land, but now covers a more restricted area within the respondents’ land. The septic tank has a capacity for “in excess of 15 persons” but the soakaway has been designed to meet the needs of 10 persons. It may require to be enlarged and to cross into the applicants’ land if the static caravan is removed or the caravan site enlarged.
17. The proposed new house at Greenacres Croft has been designed with a treatment plant with mound filtration system and will not require a septic tank and soakaway.
18. Mr Birdsall has expressed concerns about the percolation value of the land in the area of the applicants’ southern boundary. Septic tank installations fall under the control of the building authority, who require to be satisfied as to their suitability at the location.
19. Mr Macdonald first referred, uncontroversially, to the general approach to be followed, and accepted that the onus was on the applicants to satisfy the Tribunal. The purpose of the condition was an appropriate starting place.
20. In relation to the access rights, Mr Macdonald submitted that the evidence was unclear as to the purpose. When the position on the ground was considered, it appeared that there was not complete access and that the respondents could access all of their land without traversing the applicants’ land. The applicants believed that it had not been their predecessor’s intention to grant a right of access over their own land as this would serve no useful purpose. The respondents did not need the western section, access to otherwise inaccessible parts of their property being unnecessary for the proper enjoyment of the respondents’ land. The access rights being redundant, were of insufficient benefit to tip the balance. There had been no change in the character of the land. The access right was a substantial impediment to the applicants’ enjoyment of their property, preventing use of the affected area for agricultural purposes. Compensation had never been mooted, although it might arise in relation to the part of the western section which had been made up. The history of failed negotiations was not relied on.
21. In relation to the septic tank right, Mr Macdonald submitted that it was clearly envisaged that the respondents’ property would be developed with the erection of houses or buildings requiring waste disposal systems. However, they had built “The Croft” with its septic tank close to or on the boundary, and also, within their own land, the new septic tank and soakaway for the caravan site toilet block. Their plans for “Greenacres Croft” did not require use of the applicants’ land. The respondents’ evidence about possible use for extending the caravan site was unconvincing. There was accordingly no need for the servitude, which may have been created on the basis of a ‘just in case it’s required’ basis and without considering the suitability of the ground, to remain unvaried. Reference was made to the applicants’ evidence about poor percolation. The right represented a substantial impediment to the applicants’ enjoyment of their property because it was difficult to know where it would be required and it would put areas of agricultural ground out of use for purposes such as ploughing and keeping pigs. There might still be a plan to install a soakaway on the applicants’ ground at the point where they already had planning permission for a barn.
22. Mr O’Rourke confirmed the respondents’ opposition to the application in both respects. He submitted that the evidence of Mr Shaw and Mr Lee was credible and reliable, and to be preferred to that of the applicants where there were differences. He too referred to the general approach to be followed (Ord v Mashford, and Jensen v Tyler in relation to access rights) and the burden of proof.
23. Mr O’Rourke referred to the wording of the drainage condition, referring to septic tanks, plural, with necessary access on payment for surface damage. The purpose related to the gradient. The provision was practical and cost effective. The need might increase with the possible installation of the static caravan. The same title condition appeared in the other, later, titles, producing mutuality. There was a clear, reasonable purpose, which remained good. There had been no particular change in the character of the properties or neighbourhood or other change of circumstances. There was a tangible continuing benefit to the respondents in relation to the caravan business. There was relatively little farming activity on the applicants’ land and the condition could not be said to impede their enjoyment of the property to any material extent. The length of time since the condition was created, at 8 years, was short (cf Smith v Elrick & Gerrard). Planning control, providing a degree of protection and comfort to the applicants, could be taken into account (Council for Music in Hospitals v Trustees for Richard Gerald Associates). The issue of compensation was neutral. Under Section 100(j), Mr O’Rourke referred to evidence as to the various purchase prices and the pre-litigation correspondence (George Wimpey East Scotland Ltd v Fleming).
24. In relation to the access right, Mr O’Rourke pointed out that the applicants had, if they chose to use it, a right of access over the respondents’ land, for agricultural traffic. The purpose of the right of access in favour of the respondents was to ensure access to any development at the property now owned by Mr and Mrs Shaw, and to ensure access to the western end of the respondents’ property, “Greenacre Croft”, originally for agricultural use although there was now a proposed development there. It was accepted that these purposes had changed to an extent, but the purpose had remained broadly consistent. There was no change in circumstances or character. In relation to the extent of benefit, Mr O’Rourke referred to the interest in keeping traffic for Greenacre Croft and the respondents’ own agricultural use off the caravan site route. In relation to burden, the applicants’ land remained fenced to the north of the access route; they ran a small farming enterprise; it had not been established why animals required to be kept on that land; and if they constructed a barn there, the access would be to their benefit. The route could be brought up to useable condition at reasonable cost. Maintenance would be according to use. Again, the period since the condition was imposed was short. Planning consent was not a relevant factor. Compensation was, again, neutral. As regards ‘other material factors’, reference to the relative purchase prices, to the applicants’ evident misunderstanding of their access rights, and to the pre-litigation discussions, if anything, supported the respondents. Additionally, the fact that the respondents themselves negotiated these rights favoured their position.
25. This application was preceded by an unfortunate sequence of misunderstanding, conflict and failed settlement discussions. The conveyance in favour of the applicants misstated their entitlement to access over the respondents’ land, causing them to misunderstand the position, a misunderstanding which seems unfortunately to have persisted for some time. For whatever reason, the parties have been in conflict for several years. Further, some steps were taken in reliance on a supposed oral agreement when in reality there was no agreement to resolve the disputes between the parties.
26. The Tribunal, however, has to consider on an objective basis whether the applicants have satisfied us that it is reasonable to grant the application. There is no dispute about the legal approach, which is that we have to consider, so far as relevant, the factors listed in Section 100 of the Act and then reach an overall view, with the purpose of the title conditions, in this case servitude rights, and the extent of benefit and burden involved, normally being prominent in the consideration. Each case depends on its own facts and circumstances, with our own inspection at the location being important and reference to previous decided cases of limited assistance.
27. We see this application as being in two parts which require to be addressed separately. The two servitudes were created by express deed, the 2001 Disposition in favour of the respondents. On the basis of that deed and the Land Certificates registering the titles of both the applicants and the respondents, the effect of the title conditions as between the applicants and the respondents is clear. We have also heard evidence from Mr Lee about the circumstances surrounding the creation of the servitudes and the views, necessarily second hand, of the applicants about that. To the extent that it is appropriate, in considering the purposes of the conditions, to go outside the terms of the conditions themselves, we generally accept Mr Lee’s account of the background and have formed our views largely on the basis of his account together with our own observations on the ground and photographic evidence of the position at various dates.
28. We heard a certain amount of evidence about the attempt to resolve matters by agreement. Ultimately, however, as we understood it, at the stage of closing submissions, neither party relied on this as a relevant factor on the merits. There plainly was not any binding agreement. To the extent that the applicants took steps to close off, and indeed remove the surface of, the access route across their land in anticipation of the agreement, they were not entitled to do so. Whether or not their actions are understandable or excusable in the circumstances, the applicants should not in our view receive any advantage from the changed state of the ground as a result of their actions. We should consider the application in relation to the access right on the basis that one part of the route, on the western side, had in fact been formed, and that all parts would be available for exercise of the right, albeit the applicants might be entitled to install gates along the route.
29. The 2001 Disposition in favour of the respondents by the Andersons as owners of the whole parcel of land at Upper Bowertower created access rights both in the respondents’ favour and in the Andersons’ favour. From that deed and the subsequent land certificates, the position in that title is clear. Further, in our view the evidence about the position on the ground makes the provisions understandable. The land was divided into three lots, two of which were purchased by the respondents and one retained for the time being by the sellers. An access route which previously did not exist was created. It ran from a point of the existing common access road, first over the respondents’ property, part of Lot One, then across the retained land (Lot Two), which was subsequently sold to the applicants, then across Lot Three, which was also being sold to the respondents, then finally again across Lot 2. It was thus to serve both the purchasers’ and the retained land by providing access to Lot Three and other parts of Lots One and Two, particularly the fields at the far western end of the parcel, although neither Lot 1 nor Lot 2 would be land-locked without it.
30. The access route was basically to the south of the fields being retained, and ended at the entrance to the westmost field on the land purchased by the respondents. However, the sellers retained ownership, as part of Lot Two, of two sections of the route, so the rights which were created ran both ways. The rights were in that sense reciprocal.
31. We cannot take account of the applicants’ suggested understanding that it was never intended to provide an access route across what is now their land, because it is plain that that was exactly what was provided.
32. In addition, however, there is evidence from Mr Lee, which we find generally credible and reliable, about the circumstances of that purchase transaction and about additional, personal, arrangements entered into between the Lees and Mr Anderson. This brings the “caravan site road” into the picture. Again, the applicants have a different understanding, apparently acquired from some information not produced to the Tribunal. The applicants understood that the caravan road already existed when the Lees purchased, but we accept Mr Lee’s direct evidence that when he came on the scene, while the ground was traversable and vehicle tracks across the area were visible, there was no made up road. At all events, there seems no reason to doubt that Mr Lee entered into a personal understanding with Mr Anderson to the effect that the latter would physically make up the access road at the former’s expense. Mr Lee also told us, however, that he could not afford to see this scheme through, with the result that none of the eastern section on the applicants’ land was made up and the western section was only partially made up. The caravan site road was, however, made up and now serves both as access to Lot Three, now belonging to Mr and Mrs Shaw, and as access to the western section. It may seem odd that there were to be two routes on the eastern side, although Mr Lee explained the thinking behind that. What is clear is that there was an eastern section of the access route, following a different line from the caravan site road, but it was not made up because the personal arrangement between the Lees and Mr Anderson was not fully implemented.
33. Personal arrangements of that kind, and indeed involving only one of the parties to the application, may help to explain the purpose of the title conditions, but of course stand in a very different position from actual title provisions in relation to forming the access road and the expense of that. There might have been, but were not, real burdens creating such obligations. The access rights here under consideration are over stretches of land which have to a substantial degree not been formed into any road or track and have been of no real use to the benefited proprietors who can just as easily cross their own land. The applicants should not have blocked the route and ‘unmade’ the stretch which had been made up, but are, so far as we can see, under no obligation to make up the parts which had not.
34. The respondents’ land may generally be described as rough pasture or moorland. Although there are one or two ditches which would require to be avoided or culverted, that can also be said of the access route here under consideration, part of which crosses a quarry pond. Having walked the land, we see no reason why an access route could not be created over the respondents’ land (or over the respondents’ and the Shaws’ land, as these parties each said was acceptable). Creation of a road of course reduces the useable land, but we do not consider that that is a significant factor at this location, where it cannot be said that there is or is likely to be intensive use of either the applicants’ or the respondents’ land.
35. From that understanding of the position, we turn to our consideration of the factors set out in Section 100. Attention was, we think correctly in the circumstances of this case, focused primarily on the purpose of the title condition, the extent of benefit to the respondents’ property and the extent to which the access right impedes the enjoyment of the applicants’ property (sub-sections (f), (b) and (c) respectively).
36. The purpose of the respondents’ servitude access over the applicants’ property was clearly to provide, along with the reciprocal right in (now) the applicants’ favour, shared access to the mutual benefit of Lots One, Two and Three. As far as Lot Three (now, Dunnone) is concerned, that land now has other access, is separately owned and no longer has this right, so that part of the purpose appears to have no bearing on the reasonableness of the present application. The other parts of the purpose were not fulfilled. No doubt they still could be, but that seems unlikely in the foreseeable future.
37. We consider that the benefit to the respondents’ property is much more limited than might at first appear.
38. In general, it is clearly correct, as the applicants pointed out, that the respondents can take access through their own land (as can the applicants, in relation to the right in their favour). As far as the eastern section is concerned, the caravan site road, over which the applicants have no right of access, provides the respondents with equivalent access. Two benefits of a second access road on this side were suggested. Firstly, it was said that it would avoid agricultural traffic passing through the caravan site. The respondents’ agricultural traffic, however, would seem to us almost non-existent; Dunnone is simply a house and garden; and the applicants do not have any right to use that road. Secondly, it was suggested that a separate access route would benefit the ‘Greenacres Croft’ site. However, the eastern section would have to be made up at the expense of the respondents or perhaps the purchasers of that housing site, and it should be remembered in this connection that it would have to cross a quarry pond. Further, it would be an access road which would be shared with the applicants. While the applicants’ farming is not intensive, a proprietor of that land might well insist on gates being installed. There was no suggestion that the rights of the Dunnone proprietors over access by the caravan site road created any problem. When it is remembered that there is access through the caravan site road, which the Shaws regard as perfectly acceptable access to their house, we do not, looking at the matter objectively, accept that the eastern section of the access right in its present unmade state is of any real value to the respondents’ property.
39. As far as the western section is concerned, there is the difference that a large stretch of that section had in fact been made up and to that extent benefits, or at least should benefit, the respondents. Also, there is no existing made up alternative. However, we do not consider that there would be any difficulty in making up an alternative access through the respondents’ land to ‘Greenacres Croft’ and the loss of alternative use of the area involved would in our view be insignificant. There was no suggestion that the precise location at which access is taken to that site was of any importance. The benefit to the respondents is accordingly to be able to complete, at their cost, the access shared with the applicants, again possibly with gates, as opposed to creating a fresh western access road. It seems to us likely that there would be some net cost to the respondents if the right were discharged, but that would seem to be reasonably quantifiable and perhaps compensatable, as Mr Macdonald indicated in his closing submission. At this particular location we do not think that this servitude right is of any other real value to the respondents’ land.
40. As to the extent to which this servitude right impedes the enjoyment of the servient property, that too is quite limited. The loss of land which could be put to direct agricultural use again appears insignificant. There is, however, the element of having to share the access road, involving co-operation with other proprietors in relation to questions about gates.
41. The applicants do not point to any change in the character of either property or of the neighbourhood (factor (a)).
42. Factor (d) has no application. With regard to factor (e), this is a title condition which was created quite recently. We do not consider that we can take from the evidence that it added substantially or at all to the price paid by the respondents, but it was clearly a condition, in furtherance of the parties’ intention to create the new access route, specifically agreed with the respondents.
43. Nor is the application to discharge the access right related to any planning consent (factor (g)): although the applicants have consent for a barn close to the access route, the evidence was that there would be room between it and the boundary for the access road.
44. Factor (h) is neutral: compensation has apparently not been requested and there is no indication that the applicants would not be willing to pay compensation if that were appropriate. We have noted Mr Macdonald’s recognition that it might be appropriate.
45. Factor (i) has no application to this case. Factor (j) is “any other factor which the Lands Tribunal consider to be material”. Mr O’Rourke, while not pressing these matters strongly, suggested that three factors taken together might marginally favour the respondents. The first was the relative purchase prices paid by the parties for their property. Mr Lee suggested that he paid a very full price. We are not in a position to reach a view on this: the transactions were at different dates and the Lees purchased two lots, with at least two house development sites, whereas the applicants apparently simply bought a number of fields, albeit that they too would be able to build a house. Even if Mr Lee’s assertion is correct, it does not seem to us necessarily, or indeed particularly likely, to follow that the access arrangements in the title, involving an unmade access route, would in the circumstances contribute particularly to the value. In a sense, of course, the Lees paid for them, but they also in exchange, conferred access rights over the land purchased. The second matter was the applicants’ misunderstanding of their access rights, no doubt mainly as a result of the erroneous conveyance to them of an access right across the caravan site road. We do not see this as a factor relevant to the issue of reasonableness. Thirdly, there was reference to the ‘pre-litigation’ discussions on which the applicants no longer founded. If anything, the fact that there were discussions which all along involved the respondents giving up this access right, might seem to favour the applicants, but the better view seems to be that discussions which did not lead to a resolution should be ignored.
46. Mr O’Rourke also referred to the fact that the respondents themselves negotiated the access rights. We think that that is relevant and also remind ourselves of the reciprocal nature of the access rights, i.e. the applicants received the corresponding access right at the beginning of the proposed shared access road. However, in considering these matters, we think that it would not be reasonable to ignore the fact that the Lees were to meet the cost of making up the road but, as Mr Lee told us, had a shortfall with their finances.
47. Overall, we see as most significant in the issue of reasonableness the fact that the purpose of creating a shared access road was not fulfilled, together with our view that, in the circumstances as we have found them, this access right is of little real value to the respondents and any substantial loss which they would suffer if they lose the right could be financially compensated. We think that the application to discharge is reasonable provided that the applicants themselves give up their reciprocal right of access over the respondents’ property. This seems to us to be the obvious corollary of the application: the applicants can take access through their own land and indeed have themselves blocked the proposed access route at the point where it enters their property.
48. In these circumstances, while this opinion represents our considered view and decision on this application, we are not at this stage reaching our final decision. If the applicants agree to discharge the right of access in their favour over the respondents’ ground, we shall discharge the access right which is the subject of the application; if not, we shall refuse this part of the application as it would in our view be unreasonable to expect the respondents’ right to be discharged but not the applicants’ corresponding or reciprocal right.
49. Assuming the applicants wish to proceed, the parties can also consider, and hopefully agree on, the matter of compensation. In this connection, parties will wish to consider Section 90(6) and (7) of the Act. We of course have at this stage reached no view on this matter. The main question would appear to be whether the respondents can establish that the net effect of having to pay for a completely new western section, less the cost of completing the remaining part of the western section of the original proposed route, and also taking account of being freed of the applicants’ right to take agricultural traffic through the first, eastern part of the route, amounts to “substantial loss or disadvantage”. Parties will also take account of the expense and risk involved in any further hearing which might be required, and would be well advised to consider a reasonable compromise of this issue.
50. We would add that while the applicants’ right of access over the route passing through the Shaws’ land was part of the same scheme, we do not consider it appropriate, even if it were competent, to seek to involve them in any way at this stage. They could consider making an application of their own. Alternatively, they may be content to leave the position as it is.
51. We find this issue considerably simpler. As it seems to us, once all the factors are considered, the question comes to be whether the respondents as owners of their property may reasonably anticipate exercising, or further exercising, this right now or in the future.
If so, its loss would not be quantifiable or at this stage compensatable and we can see no other factor which would make it reasonable to prevent further development utilizing the right.
52. This right also is clearly enough expressed. It is a right to instal a septic tank or septic tanks and soakaways in and through adjoining land belonging to the applicants with access for installation and maintenance, subject to payment of surface damage caused. If its exercise causes damage to the applicants’ land, that must be compensated.
53. This may well be a fairly standard condition for which to stipulate when purchasing part of larger rural subjects, but the topography makes its purpose at this location clear. The only issue about its purpose is whether that was limited to the two houses which may be seen to have been contemplated in 2001 and which have in fact been built. We see no reason to imply such a limitation which was not expressed. There may not have been much contemplation about the likelihood of further development, but there is no building restriction and we would have thought that the possibility of further development, which would of course require planning consent, at some stage in the future, is implicit. There is nothing intrinsically wrong with creating a right in case it is required, although obviously all the reasonableness factors have to be considered. In addition, of course, to development control, the law of servitudes would apply, and the parties may be taken to have proceeded on the basis of such limitation on the exercise of the right as the law would imply. Consideration of the purpose of this title condition does not seem to us to support the reasonableness of this application. To the contrary, we think that the purpose was to support reasonable development at the subjects.
54. In relation to the extent of benefit conferred by the condition, there is a very clear benefit in facilitating further development. We should consider the matter objectively and not be over-concerned about the respondents’ particular personal intentions, but the caravan park is a clear example of the type of development which might be contemplated at this location. Further caravan site development may or may not be permitted, but it would not be reasonable to use removal of this right so as to control this or any other type of development for which consent may be obtainable.
55. We do not consider that this condition impedes enjoyment of the applicants’ property at all. We do not see the issue of percolation values as assisting their position. Firstly, there are three septic tanks, apparently each with soakaways, in the near vicinity, and there is no suggestion that any of them has damaged the ground. Secondly, if there is such a problem, planning or building control will address it. Indeed, there was evidence that the applicants had expressed this concern at a particular proposal to the planning authority and achieved a result by doing so. We were wholly unconvinced by the suggestions that the applicants require the ground on their side of the boundary for pig farming and that this would be incompatible with exercise of this right. Then, as regards the barn to be built there, it again seems to us that public control, together with the private obligation to exercise the servitude civilly and not cause damage, fully meets any possible concern in relation to that.
56. This condition was created recently, and we accept that Mr Lee personally stipulated for it. The complicating factors in relation to making up the access road and available alternative access have no corresponding application in relation to this right. There is no suggestion of any relevant change in the character of the properties or the locality, or other material change of circumstances. Again, the condition is not an obligation to do anything. It was not argued that it prevents some use for which the applicants have consent. Compensation does not appear a relevant consideration. Factor (i) does not arise. The applicants did not invoke any other material factor.
57. Overall, we are not at all persuaded that it would be reasonable to allow this application so as to prevent further exercise of the right and prevent further development which would otherwise be permissible. We shall when we come to give our final decision on this application refuse this part.
58. Having regard to our decision in relation to the subject access right, we shall formally continue the application as indicated. Assuming the applicants wish to proceed, we envisage including in our final order in relation to discharge of the subject access right an order under Section 90(8) of the Act, with the applicants’ consent, further varying the access rights so as to remove the applicants’ right in relation to the first stretch of the proposed access road. If the respondents wish to claim compensation under Section 90(6) and (7) and parties are unable to reach agreement on that, they can submit and vouch a formal claim, which the Tribunal may be able to deal with on the basis of written submissions and without a further site inspection, unless parties request otherwise.
59. The order will confirm our decision to refuse the application so far as related to the septic tank and drainage right.
60. Finally, we would mention that any application in relation to expenses can also be considered on the basis of written submissions in accordance with our normal practice.
Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 18 June 2009
Neil M Tainsh – Clerk to the Tribunal