Heritable Property – Title Conditions – Discharge or variation – Servitude rights of (1) Access and (2) Installation and maintenance of septic tanks and soakaways – Scheme for access road mainly unimplemented and bringing no substantial benefits – Not reasonable to vary septic tanks rights – (1) granted on basis reciprocal right over respondent’s property given up – (2) Refused – Title Conditions (Scotland) Act 2003, Section 98, 100

Heritable Property – Title Conditions – Discharge or variation – Expenses – Application to discharge two separate servitude rights – One granted, other refused – No reason to differentiate as to relative importance or time taken up by either – No award of expenses to or by either party

Carol Graham & Anr v John Lee & Anr
18 June and 24 November 2009

The parties each owned smallholdings. Access rights across land now owned by the parties and another owner had been created over a route which had not all been physically made up. One owner sought discharge. These applicants also sought discharge of another servitude right, to install and maintain septic tanks and soakaways, plus related access.

In relation to the access route, the Tribunal considered that its purpose had not been fulfilled and it was of no real use to the respondents, who could just as easily cross their own land, at quantifiable net and possibly compensatable expense. This part of the application would be granted provided the applicants agreed, as the obvious corollary, to give up their reciprocal access right. (The parties subsequently indicated agreement on this and on compensation).

The topography made the purpose of the septic tank rights clear, there was no reason to imply any limitation on the number of properties benefited and the rights were not considered to impede the enjoyment of the applicants’ property. Discharge of these rights was refused.

Both sides claimed expenses. The Tribunal considered that there had been divided success and there was no reason to differentiate between the two parts of the application. No award to or by either party was made. The Tribunal would, narrowly, have sanctioned the employment of junior counsel if any award had been made.

Authorities referred to:-

George Wimpey East Scotland Limited v Fleming 2006 SLT (Lands Tr) 2
Ord v Mashford 2006 SLT (Lands Tr) 15
Smith v Elrick & Gerard, 20.11.2006, LTS/TC/2006/14
Council for Music in Hospitals v Trs of Richard Gerard Associates 2008 SLT (Lands Tr) 17
Jensen v Tyler LTS/TC/2007/35, 25.4.2008.

See full decision:  LTS/TC/2008/41 (Merits) and LTS/TC/2008/41 (Expenses)