1. In this application under Section 90(1)(a)(i) of the Title Conditions (Scotland) Act 2003 (“the Act”), the applicant seeks to vary a right of access by a specific route which now crosses the site of a conservatory, a porch and a parking space which she has developed without the formal consent of the respondent or the respondent’s predecessor as neighbouring proprietor. The respondent objects to the application.
2. The Tribunal has decided in the circumstances that the precise original access route is of no particular benefit to the neighbouring property, the purpose of the title condition can still be fulfilled and that the application is generally reasonable, subject however to one particular problem in relation to the access route at the point where it takes a right angle bend beside the boundary of the applicant’s property. The width at that particular point is in the Tribunal’s view unreasonably narrow. For reasons set out below, the Tribunal has granted the application but only on the basis that the access route should be of a minimum width of 0.9 metres or thereby.
3. Having also had the opportunity of considering submissions on expenses, the Tribunal has awarded the expenses of the application to the applicant, from the date of intimation of the respondent’s representations, restricted to 50%.
4. The applicant’s and the respondent’s properties, 56 and 58 Hill Drive, Eaglesham, Glasgow, at one end of a terrace of four houses, were each formerly council-owned. At the time of the sale of the applicant’s property, 56, by the council, it was provided, by Feu Disposition by Eastwood District Council in favour of Gavin Proctor and Another registered in the General Register of Sasines for the County of Renfrew on 20 November 1981:-
“Declaring also that there is hereby created a heritable and irredeemable Servitude Right and Tolerance of Wayleave for the Superiors and their successors as proprietors of Number Fifty eight Hill Drive aforesaid over the path tinted blue on the Title Plan;”
The titles to the applicant’s and the respondent’s properties are each now registered, as REN 3665 and REN 7139 respectively, with this title condition narrated in the Burdens Section of 3665 and the Property Section in 7139.
5. The application is for variation of the title condition so as to permit the applicant to move the path to a position detailed and shown on a relevant title plan. The application was heard at an oral hearing at which the applicant was represented by Ms Corcoran, Solicitor, of Messrs Lawrie Jackson, Glasgow and the respondent by Mr Finlayson, Solicitor, of Messrs Livingstone Brown, Glasgow. The applicant and her partner, John Anthony Beggs, gave oral evidence, as did the respondent and Callum Kerr, a heating engineer of E.A.G.A. Scotland Limited, formerly Everwarm. Both sides lodged documentary productions which were agreed to be what they bore to be subject to certain expressed exceptions of which the Tribunal has taken account. The Tribunal made an unaccompanied site inspection. The Tribunal considered that the minimum width of the access route should be specified. We issued a Note of our views (which has formed the basis of this Opinion), and gave the parties the opportunity to comment on that matter as it had not been specifically canvassed at the hearing. Neither party made any further representation on it.
Ord v Mashford 2006 SLT (Lands Tr) 15
Graham & Fletcher v Parker, LTS/TC/2006/25, 14.3.2007
MacNab v McDowall, LTS/TC/2007/23
6. On the basis of parties’ agreement, the evidence and submissions and our own inspection, we found the following facts established.
7. The applicant acquired 56 Hill Drive in January 2002. It is an end terraced, two storey dwelling in a block of four former local authority houses dating apparently from around the 1960s. Each house has front and rear gardens. A paved path runs immediately to the back of all four houses. Originally it ran alongside the gable of 56 and thereafter from the front door step through the garden to the public road, a distance of about 9 metres. It followed a similar course at the other end of the terrace, with the result that only one house, the respondent’s, has the access right over 56. The land slopes down from the front of the terraced block with a drop at that point of about 1.4 metres. Before alterations by the applicant to the front garden there was a flight of five steps at the end of the path leading down to the road.
8. The respondent took entry as purchaser of 58 in December 2003. It adjoins 56. It also has a front garden with a paved path leading from the front door down to the road. It first slopes very gently and then there are six steps down to pavement level, the overall drop being about 1.25 metres. At the time of our inspection a trench had been cut in the front lawn and into which a new polythene water pipe, not yet connected at either end, had been placed.
9. The applicant has carried out a number of improvements at 58. Following receipt of a building warrant in December 2002 and approval from East Renfrewshire Council as superiors in January 2003 the applicant arranged for a conservatory to be built on to the end gable wall. Work started on this in May 2003 and was completed by summer 2003. Subsequent alterations carried out in 2004 included a new porch and the formation of a parking space. Planning consent appears not to have been required for the conservatory but was obtained for the subsequent works. These changes involved physical realignment of the access path. It now extends further in a straight line at the rear of the house and then turns through a right angle at the corner of the conservatory and thereafter in a straight line, beside the parking space and close to the boundary fence with 54, to the public road. No formal consent was obtained for variation of the access route provided in the title condition. The previous proprietor of 58, which was then let out, apparently raised no objection to the erection of the conservatory. The respondent has raised various matters with the applicant in connection with the works.
10. Part of the new footpath down the side of the conservatory and adjoining the boundary fence with 54 is about 0.9 metres wide and partly made with single width 0.6m slabs with gravel edging on each side, but part immediately adjoining the conservatory has double width paving slabs giving a maximum width of about 1.2m. There is a similar style of path to the rear, also part double and part single width with gravel edging and typically about 1.2 m wide. Similarly, towards the front, the path is initially double slab width and then, where it adjoins the new parking space from which it is separated by a low wall, single width with edging. This stretch includes four steps and a section which slopes apparently slightly more that the slope on the original path.
11. With one exception, the path compares favourably with the original path. Whilst the width of the paths to the side, rear and front appears substantially unchanged (and perhaps at points slightly larger), the path detail at the corner, where it takes the 90 degree turn to the rear, is considerably more restrictive. At the corner the path is restricted to one slab plus a small amount of gravel edging. At this point the gap is restricted by the conservatory sill detail which projects beyond the face of the conservatory wall and also by a protruding fence post and 0.28m thick low retaining wall at or close to the boundary with the neighbouring house, 54. At its narrowest, the gap is only 0.76m At the time of our inspection, this problem was made worse by the position of the applicant’s two wheelie bins beside the corner. Even if these were removed, however, the gap at that particular point is unreasonably narrow and difficult to manoeuvre round with items such as wheelie bins.
12. The lead water pipe supplying the four properties in the block appears to run from the public road through the front garden and just outside the gable wall of 56, before turning through a right angle to run along and into the properties at the rear of the block. The pipe is in poor condition and the water supply has been problematic. There has been consideration of possible remedial steps. The titles to Nos 58 to 62 confer necessary access rights for maintenance. The construction of the conservatory has made replacement or repair of the pipe, where (as appears to be the case) it runs alongside the gable and therefore under the conservatory, difficult and potentially disruptive. It would however be feasible to run a new water supply pipe around the outside of the conservatory at an appropriate depth. This would be only marginally more expensive than replacement of the pipe would have been if the conservatory had not been built. The respondent has initiated works to instal her own dedicated supply with a toby serving only 58.
13. Hill Drive forms part of a local authority housing development. Most of the houses are semi-detached or in terrace blocks of four. The majority of houses appear now to be in private ownership. Many of the houses in private ownership have been upgraded with improvements such as loft conversions, extensions and conservatories added.
14. For the applicant, it was maintained that the conservatory had been completed by June 2003. The respondent had accordingly been fully aware of the new path route when she purchased her property. The respondent’s right to object had prescribed, and the proprietor of 58 had acquiesced: Sections 18, and 16, of the Act. The new path was broader and of better condition and construction than the original. The respondent would not be deprived of her title right to enter the applicant’s premises to maintain the water pipes and their replacement did not require de-construction of the floor area of the conservatory. Having regard to the factors listed in Section 100 of the Act, it was reasonable to grant the application: there were two relevant changes of circumstances, firstly the plans and consents in relation to alterations to the property, and secondly the changes made at a number of former local authority premises in the neighbourhood; the essential benefit from the title condition, the ability to go to and from the public road, had not been lost; on the other hand having to demolish the conservatory would be a substantial detriment, it being common to want to extend and increase the value of one’s property; the obligation to maintain the access remained, and it would be extremely expensive to restore the original route; the title condition had been created over 20 years ago, during which period society had changed and people had started building extensions, etc. at such properties; the original purpose, as described, would be fully maintained; all consents, including superiors’ consent, had been obtained; compensation was not offered; there had been acquiescence in the change carried out and the applicant had tried through solicitors to get the matter resolved; the water pipe could be replaced, there was nothing in the title to prevent building on top of pipes and any issue about that was a matter for another forum; and in any event the respondent had apparently chosen to obtain a direct water supply.
15. The respondent’s position, in her written representations objecting to the application, was that the conservatory had not been constructed at the time when she purchased. She had regularly exercised access over the title route prior to that. She also contended that she was being deprived of her right to enter the applicant’s premises to maintain the water pipes under the conservatory. Further, the proposed access route involved going down stairs which had not been in existence and manoeuvring past a parking bay and was not suitable. The path was narrow and restrictive.
16. In oral submission on the respondent’s behalf, Mr Finlayson maintained the link between the issue of the water pipes and the path, but accepted that the path could be re-routed and that there was no evidence to support any re-routing cost over around £100. He reiterated that the alternative access was not suitable. He submitted that prescription did not apply and in any event some of the variation, in front of the house, had been carried out less than 5 years ago. A servitude expressed in the titles did not prescribe. In relation to the statutory factors, he accepted that there had been some alterations in the area but maintained that any change of circumstances was of relatively minor weight, the servitude having been created with a view to private ownership; accepting that the respondent was being left with some access, the benefit was not of the same quality as it had been; it was not accepted that the servitude was a substantial impediment on the applicant’s ownership; it was practical to comply with it by not building; it was a relatively new title condition; its purpose was to allow access to the rear of the property; the planning permission had not been for the conservatory; and there had been no offer of compensation.
17. Sections 98 and 100 of the Act require us to have regard to a list of factors together with any other factor which we consider material, and then to decide on an overall view whether we are satisfied that it is reasonable to grant the application. Each case has to be decided on its own facts and circumstances, although it is fair to say that applications for specific variations of access routes will often be held reasonable if the alternative route proposed fulfils the purpose of the condition and is reasonably comparable in quality and convenience with the original route. This is because the purpose of the condition will continue to be fulfilled and there will be no real benefit to the benefited proprietor to set against the detriment to the burdened proprietor if the original route is maintained with the result of preventing reasonable development.
18. We should first explain our views on particular issues which have been raised in this case. Firstly, there is a factual issue as to when the conservatory was built and therefore as to whether it had been built by the time the respondent purchased her property. We are entirely satisfied that the applicant’s position on this is to be preferred. She produced a number of documents with dates in support of her evidence that the conservatory had been built by the summer of 2003 and that the respondent had not offered to purchase until October 2003 and taken entry until December 2003. The respondent specifically did not agree that these dates were accurate, but having heard the applicant and her witness, Mr Beggs, who actually erected the conservatory which had been purchased in kit form, we prefer their evidence, supported by the documents, as to the date. Not all of the documents bore to be contemporary, but those which did vouched the sequence, as spoken to in evidence, of events through grant of the building warrant, obtaining superior’s consent, ordering the conservatory kit, paying for it and a plumber’s invoice, all supporting the timing of completion in the summer of 2003. We noted that Mr Finlayson in oral submission, while not withdrawing this point, offered up no argument as to why the respondent’s unsupported evidence on this should be preferred. It is evident that at some stage after she moved in, the respondent was faced with disturbance of the ground at the boundary at the front between the two houses, in connection with the later works, and she may have been confusing this with the erection of the conservatory. At all events, we have found it established that the conservatory was completed by about the middle of 2003, before the respondent arrived on the scene.
19. That is a finding the relevance of which in the issue of reasonableness we consider below. However, we do not accept the applicant’s submissions that this title condition (or, more accurately, the right to object to the alteration of the access route) was extinguished by either acquiescence or prescription. Sections 16 and 18 of the Act apply to real burdens, not servitudes. Other possibilities were not canvassed in argument. We might accept that long negative prescription might apply, even to an express servitude, but that would not assist the applicant. If acquiescence in this breach is possible, we are not persuaded that a case for that, either by the previous proprietor or by the respondent, is made out. Further, the superior’s consent appears to us to be of no assistance, the access right being expressed in favour of the local authority and its successors as proprietors of 58. In any event, it was only consent to the erection of the conservatory. We consider that the access right, as expressed in the original Feu Disposition and narrated in the current registered titles, is indeed extant although of course subject to our jurisdiction to discharge or vary. It follows that the applicant, in proceeding to build the conservatory and make the other alterations to the front of her house, was in breach of the title condition which she now seeks to have varied. Such action in breach should not assist her case for the reasonableness of the order sought. In other words, we are considering an application on the basis of a proposed alternative access route, not an established one, although we should also consider what, if any, effect the failure specifically to challenge the applicant has on the issue of reasonableness in the particular circumstances.
20. We do not accept that the position in relation to the water supply pipes affects the issue before us. As a matter of law, the respondent’s rights in relation to these would be unaffected by an order varying the route of the access right. As a matter of fact, the evidence did not reveal any adverse effect on the respondent other than a marginal increase in her share of the cost of installing new pipes. We would not regard the cost to the respondent of installing her own supply as a relevant consequence of the alteration of the access route, and no other relevant matter was referred to.
21. The main issue of fact, perhaps, in a case of this nature is how the proposed new access route compares with the title route.
22. It should be noted that although the present title route is defined, there is presently no requirement as to either its width or its quality, although it can safely be taken as providing only pedestrian access. No doubt when the right was granted, it related to the existing footpath. There is no particular stipulation as to its use but it can be taken as providing a route into the back of the respondent’s mid-terrace house and one would reasonably expect that to facilitate carrying bulky items, which it was for one reason or another unsuitable or impossible to carry through the house, to or from the back of the respondent’s house or garden.
23. We have of course been able to inspect what has actually been provided. We were assisted by one photograph of part of the previous route, in the front garden, and also by seeing the position at the rear of the house, and indeed the other two houses in the block. Subject to one point of difficulty, we were of the clear view that the proposed alternative route compares favourably and is convenient and adequate. The most regular use of such paths these days is no doubt for taking wheelie bins which owners have to take out to the street for emptying, and such use seems to us to provide a reasonable test for the adequacy of the route. At this location, some slope, and some steps, are inevitable. The new route appears at most points to be equivalent to or slightly better than the old.
24. However, we found there to be a problem at the corner of the path, as recorded in our finding at para. 11 above. It will be noted that on the original route there would be no point at which the route passes directly between two built structures. Where that occurs in the case of the new route, for example along the side of the conservatory, there is usually no problem. Unfortunately, at the corner of the conservatory, the width has been reduced. It is not impossible to manoeuvre an item such as a wheelie bin past that point, but it is unreasonably awkward, and indeed it seemed to us to be a recipe for problems in relation to the plastic sill detail of the conservatory.
25. We ignore the difficulty caused by the applicants’ bins being situated just at the corner, and indeed a plant pot as shown in one of the photographs. If moveable items obstruct reasonable access, they should not be there.
26. There would appear to us to be ways of enlarging the gap at this critical point. No doubt alteration of the structure of the conservatory would be difficult, although if this is what it takes to provide a reasonable alternative access route it will require to be done. It did seem to us that there should be scope for reducing the width of the low retaining wall or perhaps replacing it adequately using some other material.
27. Our assessment of the factors listed in section 100 of the Act is as follows.
28. As to (a), we do consider that there is a general change in the character of the neighbourhood, insofar as many of the properties have become privately owned and their owners have made improvements which include extensions. In very general terms, this supports the reasonableness of assisting such development by varying the routes of established footpaths which in the case of terrace blocks serve more than one property. We accept, as Mr Finlayson submitted, that the access right was created with private ownership in mind, but the title right apparently reproduces the original footpath provision and does not allow for the sorts of further development which have become common in the era of private ownership. We do not, however, consider that the existence of the consents for the particular proposals for a conservatory, a front porch and a parking space at the applicant’s house amounts to a relevant change of circumstances: these are properly considered under factor (g).
29. As to (b)(i), while the access right as a whole is clearly of substantial benefit to the respondent’s property, the precise route specified when the applicant’s property was sold to the tenant in 1981 appears to us to be of little if any benefit provided the alternative proposed is reasonably comparable. Factor (b)(ii) has no application in this case.
30. As to (c), we ignore the possible cost of dismantling the conservatory erected in breach of the condition. However, it is clear that the precise access route is a substantial impediment to developments such as the conservatory, front porch and parking space. The title condition therefore substantially impedes enjoyment of the applicant’s property.
31. Factor (d) is of little, if any, relevance, as this title condition basically does not involve a positive obligation.
32. The relevance of factor (e), the length of time since the condition was created, is often limited, as it may be more important to consider the extent of general change over the period rather than the actual length of the period. In this case, we think it is in itself a neutral factor.
33. Factor (f), the purpose of the title condition, if it can be ascertained, is often very important. Here, the purpose of allowing reasonable pedestrian access to the rear of the respondent’s property is plain. This purpose remains relevant but is not in any way threatened by a variation of the precise route, again provided that the alternative proposed is reasonably comparable.
34. As to (g), ignoring the fact that building has proceeded, it is clear that maintaining the precise access route provided in the title would indeed prevent development and use of the conservatory, porch and parking space for which there is planning consent (or, in the case of the conservatory, deemed consent, because express consent is not required). We do not regard the superior’s consent as relevant here, firstly because the superior was not a ‘regulatory authority’ for this purpose and secondly because in any event the right is in favour of the proprietor of 58 and not the superior (now, former superior) as such.
35. As to (h), compensation appears to us to have no real relevance in this case.
36. (i) is not applicable. As to (j), any other material factor, there has clearly been some degree of acquiescence, by the previous owner of 56 and indeed by the respondent, who does not appear to have sought to enforce the specific access route. However, we attach little weight to that, firstly because it came about as the result of the applicant’s breach of the title condition, and secondly because we do not consider that this is a situation in which the respondent could reasonably have been expected to take any steps other than opposing this application. As we have indicated above, we do not consider that the situation regarding the water pipes has any bearing on the reasonableness of this application.
37. Drawing all these considerations together, we are in general of the clear view that variation of this access route is reasonable provided that the alternative proposed is of comparable quality and convenience. The purpose would then be fulfilled and the respondent as proprietor of 56 would not lose any significant benefit. Inability to vary the route would be a very substantial impediment on the applicant’s enjoyment of her property. Factors (a) and (g) also support the reasonableness, in general, of the application. The applicant should not receive any benefit in the consideration of the application from the fact she ‘jumped the gun’, but viewing the matter simply as a proposal to vary the access route, the general answer is clear.
38. However, there is one specific problem arising out of the narrowness of the gap at the right angle bend in the route. Considering our finding on this matter, we cannot find the application reasonable unless this problem is addressed. It would no doubt have been easier to address if the conservatory had not already been built, but it still requires to be addressed. Rather than refusing applications, we commonly allow applications subject to conditions such as for example maximum heights of buildings. A condition as to the minimum width of the access route appears to us appropriate in view of the specific problem which we have identified. In the particular circumstances we have decided on 0.9m, or just under 36 inches, as a reasonable minimum width for this proposed access route, so as to deal reasonably with the problem at the right angle bend. We have inserted a specific condition to this effect in order varying this access right. This is related to the specific circumstances of this application.
39. We took the opportunity, when asking for comments on the condition about width, of indicating that we could deal with any issue of expenses on the basis of written submissions. We indicated that this might be a case in which no award of expenses was appropriate because of divided success and also because the applicant may not have sought the consent of the neighbouring proprietor before carrying out the works which have led to this application. In the event, the applicant has sought an award of expenses and the respondent has not only resisted that but herself sought expenses in her favour, which failing, no expenses due to or by either party. The applicant has provided some further information about extra-judicial events.
40. In her submission on expenses, the applicant has drawn attention to the respondent’s original apparent willingness to correct the titles to show the realigned access path; to her subsequent unwillingness to do so except on payment of compensation, apparently based on the cost of re-routing the water supply; to her failure to reply to a letter in advance of the hearing inviting further negotiation; and to her concentration on irrelevant matters. There is force in these submissions. In general we found this application reasonable. The respondent did not pursue a claim for compensation, which we would not have awarded anyway. The applicant has now produced a letter dated August 2009 from her previous neighbour indicating that he did consent to relocation of the pathway.
41. However, the fact is that the applicant proceeded with the works and in the course of doing so created what we found to be a recipe for problems. She did not formalise the variation of the access route. In all the circumstances, having regard to the applicant’s slightly less than complete success and to the respondent’s conduct in relation to this application, we have decided to award expenses in favour of the applicant, from the date of intimation of the respondent’s representations on the application, restricted to one half.
Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 30 September 2009
Neil M Tainsh – Clerk to the Tribunal