Heritable Property – Title Conditions – Variation – Route of servitude right of pedestrian access – Conservatory, etc, erected on route – Reasonableness – Application granted, subject to condition as to width – Title Conditions (Scotland) Act 2003, Sections 98, 100

Heritable Property – Title Conditions – Variation - Expenses – Applicant having created problem by proceeding to erect conservatory, etc, on titular access route – Applicant not entirely successful – Respondent having made consent conditional on compensation for an irrelevant matter – Applicant awarded expenses, modified to 50% - Title Conditions (Scotland) Act 2003, Section 103(1)

Jennifer Mary Gibb v Karen Kerr
30 September 2009

The applicant owned the end house in a terrace of 4 former local authority houses. Her immediate neighbour had a servitude right of pedestrian access to the rear of her house. The applicant had erected a conservatory, etc, on the access route and applied for a variation of the route. Parties were in dispute about the water supply pipe.

The Tribunal did not accept that the water dispute was relevant or that the respondent would incur any significant cost on this as a result of variation of the access route. Although the applicant should not receive any benefit from the fact of having erected the building on the access route, the variation sought was reasonable apart from a slight problem at the corner of the applicant’s property, where the route was unduly narrow. The application was granted subject to a condition, related to the particular circumstances of the case, as to the minimum width.

On expenses, the applicant had created problems by proceeding with the works and had not been completely successful in her application. The respondent, however, had sought to make consent to the variation conditional on the applicant bearing the cost of creating an alternative water supply inlet. The applicant was awarded expenses, modified to 50%.

Authorities referred to:-

Ord v Mashford 2006 SLT (Lands Tr) 15
Graham & Fletcher v Parker, 14.3.2007, LTS/TC/2006/25
MacNab v McDowall, 24 October 2007, LTS/TC/2007/23

See full decision:  LTS/TC/2008/54 (Merits and Expenses) and LTS/TC/2008/54 (Modification of Expenses)