[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 over the applicant’s driveway. This driveway leads to the respondent’s double garage which is situated to the rear of his house on ground sold by the applicant’s predecessors in title. This was the only available vehicle access when the respondent’s property was separated from the applicant’s land, but the applicant relies on the fact that the respondent has created a new access which the applicant considers adequate for his access needs.
[2] Having considered the relevant factors referred to by the parties, the Tribunal is of the view that it is reasonable to grant this application, although the discharge will cause loss to the respondent. The respondent has in fact not to date claimed compensation in these proceedings, but should in the Tribunal’s view have a brief opportunity to do so. In these circumstances, the application will be continued for a short period to enable the respondent, if so advised, to intimate a claim for compensation. It would of course be desirable if parties could reach agreement on that matter.
[3] By Disposition by John R Wilson in favour of William E Langstaff recorded in the General Register of Sasines for the County of Ayr on the 11 November 1974, there was conveyed, along with what is now the respondent’s property, ‘Rowan Cottage’, Springs, Mauchline, a “right of access to and egress from the subjects …. from and to the road from Ayr to Stair and to and from the private driveway”. This title condition (“the servitude”) is included in the Property Section description of the Title Sheet of the respondent’s property (AYR62949) and narrated in the Burdens Section of the Title Sheet of the applicant’s property (AYR73392), known as ‘Willow Grove’, Springs, Mauchline.
[4] The applicant seeks 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.
[5] The application was heard at an oral hearing on 6 October 2009. The applicant was represented by Mr Milligan, Advocate, instructed by Sprang Terras, Solicitors, Ayr. The respondent was represented by Mr Cockburn of Maxwell MacLaurin Solicitors, Glasgow. The applicant gave oral evidence. The respondent gave oral evidence and also called his former partner, two neighbours, a valuation surveyor, Craig Millar FRICS of Allied Surveyors, and two near neighbours, as witnesses. Both parties also lodged certain documentary productions. The Tribunal carried out a site inspection on 30 October.
Ord v Mashford 2006 SLT (Lands Tr) 15
Jensen v Tyler, LTS/TC/2007/35, 25.4.2008
Colecliffe v Thomson, LTS/TC/2008/38, 1.4.2009
[6] There was little dispute on the basic factual position. On the basis of the oral and documentary evidence, parties’ submissions and our site inspection, the Tribunal found the following material facts established.
[7] The parties’ properties are adjoining subjects situated in Springs on the north side of the Stair to Ayr minor county road. Springs is a small rural hamlet surrounded by agricultural land and comprising about a dozen dwellings. The applicant purchased her house Willow Grove, Springs, Mauchline, Ayrshire in August 2006. Her property, the total area of which is about 0.6 hectares, comprises a detached dwelling situated centrally within a substantial garden area and having a frontage to the road of about 48 metres. To the northeast the property is bounded by an operational railway line. The applicant’s property also includes an area of woodland extending to about 0.27 hectare which lies to the north west of the garden. The respondent’s property lies immediately adjoining to the southwest and the total length of the mutual boundary is approximately 45metres.
[8] Access to the applicant’s house from the public road is currently by a drive which runs along the line of the boundary on the northeast side of the respondent’s property. This gated driveway gives access to the applicant’s house and until recently her garage which has now been demolished but which was situated to the rear of Willow Grove. The drive also provides the only vehicular access to the respondent’s garage. The drive is gravelled and is on average about 6 metres wide with a low retaining wall forming the edge of the drive for a distance of about 34 metres. The boundary between the properties is a hedge but additionally the applicant has erected a 1.9 metres high close boarded timber fence on her side of the boundary. There is a gap of about 2.75 metres in the fence in front of the respondent’s garage door. At the time of our inspection the applicant was building an extension to her house, building a new garage to the east of the house and carrying out landscaping works in her garden which included the formation of a new driveway sited to the east of the house and leading to the public road.
[9] The respondent acquired Rowan Cottage in 1985. At that time it had a common boundary with Willow Grove, shown in the title plan, extending to 127 feet 9 inches or thereby (38.95m). The servitude had been created in 1974, when the subjects now forming the main part of the respondent’s property were sold off, retaining a building plot on which the house now known as Willow Grove was built. At that time, vehicle access to the subjects sold could only be taken over the existing driveway running along the boundary but retained in the Willow Grove plot. The right of access and egress over this driveway along the whole length of the boundary as it then stood, i.e. around 127 feet, was therefore created.
[10] In 1989 the respondent and his wife acquired two additional small areas of ground. One area lay beyond the rear of the garage at the north end of their property and adjoining Willow Grove. It extended the common boundary with Willow Grove by some 18 feet (7.8m). The second area lay to the west and adjoined the public road. Following these purchases and about 12-14 years ago the respondent created a new access to the house and to the rear of his property. This now provides the primary access to Willow Grove, on its southwest side, i.e. on the other side from the applicant’s property. The additional area to which it leads, behind the house and garage, provides substantial parking and turning space. There would also be space in that area for a garage.
[11] The existing garage in the respondent’s property lies close to the mutual boundary. It is brick built with a part profiled metal sheet and part corrugated asbestos roof and has a height to the eaves of about 1.83m. It appears to have been built about 50years ago and whilst serviceable is in a generally poor state of repair. There are pedestrian doors on the north and west elevations but the only vehicular access is by way of an up and over door on the east elevation which opens on to a small fenced “forecourt” which in turn gives access on to the shared drive. Vehicle access to the garage and forecourt accordingly presently requires exercise of the servitude right of access. The garage has not been used recently to park vehicles and it is currently used for the storage of bulky items including a trailer and motorbike. It may be possible, subject to obtaining building warrant, to install a new up and over door on the west gable of the garage. However, the respondent’s septic tank is located immediately outside the garage on this side, so that investigation of the septic tank’s construction and load bearing capacity would be required.
[12] There is pedestrian access from the garage forecourt, through a gate in the panelled fencing, to the back door of the house. The forecourt can be illuminated by an electric light on the gable of the garage.
[13] Before relations with the applicant deteriorated, the respondent’s partner had been in the practice of parking her car in the garage forecourt. The forecourt’s restricted size meant that her car when parked protruded very slightly onto the shared drive. The applicant subsequently obtained an interdict forbidding the respondent from parking on the drive.
[14] After the new access to Rowan Cottage was formed the respondent, who trades as a self-employed joiner operating from his home (other than for a period from November 2008 to January 2009 when the property was let), was in the practice of driving his van into his property and parking on the ground to the rear of the house. When exiting, he would drive in a “horse-shoe” route, beyond his garage and then by way of the shared drive with Willow Grove. Subsequently the boundary at that point was blocked by the applicant by a fence. The respondent now turns his vehicle within his rear yard and exits using the new drive, all within his own property. The only other reason for the respondent to use the shared drive is for vehicular access to his garage and its forecourt. Although there are the remains of a pedestrian gate in the boundary fence close to the east gable of Rowan Cottage, this does not appear to have been used for very many years.
[15] The septic tank for Rowan Cottage is sited to the west of the garage and to the rear of the house. The covering of the septic tank appears to be concrete slabs. Neither the weight bearing capacity of the slabs nor the capacity of the septic tank walls to take imposed loads such as a vehicle is known. The septic tank was not designed to allow vehicles to run over it. Immediately to the south of the septic tank and abutting the garage is a stepped timber patio enclosed by a timber fence.
[16] Loss of vehicle access to the garage and its forecourt would substantially reduce the value of Rowan Cottage, although the garage would continue to have some value as storage accommodation.
[17] On the applicant’s behalf, Mr Milligan indicated that there was no dispute about the legitimacy of the title condition, now described in the respective Land Certificates. In relation to the ‘horseshoe’, it would be for the respondent to show that there was sufficient space to entitle him to take that route in reliance on the condition. Reference was made to Section 98 of the Act and to the importance of the purpose or intention of the condition (Ord v Mashford, at 23H). Here, that was clearly to allow access onto the road, that being at the time the only access to what is now the respondent’s property. There was no doubt that that was required at the time. The access was to the property rather than to the garage, although the applicant was not in a position to suggest that the garage had not been there at the time. However, the benefited property now had its own alternative access, so that the circumstances had materially changed. The position was similar to that in Colecliffe v Thomson, in which case also there had been a deterioration in relations between the parties, although there were distinguishing features. It was relevant that there was a likelihood of continuing dispute. The benefit of the condition to the respondent was limited to – if this was established – the ‘horseshoe’ use and apparently limited use of the garage which was in fact used as a store. The condition impeded the applicant’s enjoyment of her property, as she did not herself require the drive and intended to build sheds over its route. Work was required to shore up the retaining wall up the side of the road, although factors (d) and (e) in section 100 were not relied on. There was no evidence of any planning, etc. consent and factor (g) was neutral. Reference was made to Jensen v Tyler. No offer of compensation had been made. On (j), ‘any other material factor’, the applicant did rely on the breakdown in communications, which was not going to resolve itself, on the issue of access.
[18] On the respondent’s behalf, Mr Cockburn accepted that there could not be a right of access to the ground acquired to the rear of the respondent’s property since the condition was created before that land was acquired, and it was not possible on the evidence to determine to what extent ‘horseshoe-ing’, using the access right, was permissible. Each case depended on its own facts and circumstances. The Tribunal had a discretion. The onus was on the applicant. It was accepted that there had been a change in respect that the respondent had added a drive on the other side, although the acquired ground itself had not facilitated that. Otherwise, there was no change in the character of the properties. The condition conferred the obvious benefit of vehicle and pedestrian access to the house. Without the right of access, the garage could not be used as a garage. There was evidence of its use. The possibility of vehicle access to the garage from the other side depended on obtaining a report on protection of the septic tank, as to which there was no information: the application could not be held reasonable without some estimate of the cost. The burden on the applicant was limited. It was agreed that factors (d) and (e) were irrelevant. In relation to factor (g), Mr Cockburn acknowledged the likelihood of the applicant getting permission for sheds or the like. It was wholly unreasonable to consider the application without consideration of the loss and expense to the respondent: if it was not possible to re-align the garage, he would incur the cost of building another, so that the differences in value spoken to by Mr Millar might not be the true cost. On an objective test, there was no other material factor. The application had not been shown to be reasonable if it involved the respondent in any cost. There was not at present enough information on that. Matters would be different if the risk of the respondent’s suffering loss were removed.
[19] There being no dispute about the existence of this access right, we are only to grant the application for its discharge if we are satisfied, having regard to the factors set out in Section 100 of the Act, that it is reasonable to do so. We should consider the evidence (in the light also, importantly, of our own observations at the site inspection) in relation to those factors and then answer the question as to reasonableness as a whole, on the facts and circumstances of this case. It is perhaps not strictly a matter of discretion, beyond, of course, the assessment of what is reasonable. The onus is on the applicant.
[20] The test is objective, so that we are not particularly concerned with parties’ subjective positions and intentions. We have to look objectively at the relative positions of the two properties in relation to the servitude. For that reason, we are also not directly concerned with parties’ allegations about each other’s behaviour in relation to the condition. That said, we recognise that a requirement to allow a neighbour to take access over one’s drive is in itself burdensome, even if use of the driveway does not frustrate some other possible use of the space, because it imposes an ongoing requirement to tolerate passing vehicles and also to co-operate, for example in relation to gates and the like. We followed a similar approach in Colecliffe v Thomson, where the basic facts were – at a very general level – similar because the title condition had been created to provide necessary access but alternative access had subsequently been obtained. However, although referring to this case, Mr Milligan acknowledged that there were differences: each case depends on its own circumstances.
[21] Although we were provided with a large bundle of title deeds vouching a history of break-offs as well as piecemeal additions involving these properties, the purpose of this title condition is clear and indeed not in dispute. In 1974, the subjects now forming the main part of the respondent’s property were sold, and conveyed in a ‘break-off’ disposition, retaining a building plot on which the house now known as Willow Grove was built. Vehicle access to the subjects sold could then only be over an existing driveway in the Willow Grove plot. The right of access and egress over this driveway along the whole length of the boundary between the two subjects was therefore created with that clear purpose.
[22] However, as is also not in dispute, an entirely serviceable alternative vehicle access to the rear of Rowan Cottage has been created since 1974. It was accepted in evidence, and we satisfied ourselves at the site, that the driveway on the southwest side of the house is adequate and leads to a substantial rear parking and turning area, most of which is on additional land acquired since 1974. There has clearly been a substantial change of circumstances.
[23] The garage, reachable by car (at least at present) only by using the access right, introduces another element. Although there was no clear evidence of the age of the garage, it appeared to us to be around 50 years old. It also appears to be shown on the title plan of the deed creating the right. On that basis, a purpose of access to that garage, in addition to the general right, may be discerned. Even if that were not right, the garage is clearly quite old, so that the benefit of vehicle access to the garage using the access right is well established. There was an issue (on which we heard some slightly conflicting evidence) as to how much the garage was actually used by the respondent as a garage rather than a store, but, looking at matters objectively, there is in our opinion clearly some benefit in vehicle access to this garage and its forecourt. Mr Millar’s evidence that the loss of access to a double garage would reduce the value of a property such as this by £12,000 to £15,000, although that would require to be offset by the value, around £5,000, of the building as a store, was not disputed. Realignment of the garage may be possible by siting a vehicle door on the other side but would certainly involve expense, of unknown amount, including the expense of protecting the septic tank. Whatever the position about the respondent’s actual use of the garage, the discharge would clearly cause some loss even although the main purpose of the title condition is being achieved in another way. That said, the garage building is not particularly attractive and not in very good condition. It may well be quite an improvement to Rowan Cottage to have a purpose-built garage accessible from the new driveway.
[24] The right of pedestrian access to Rowan Cottage, using the driveway, did not really feature in the respondent’s submission, either in the pleadings or at the hearing.
[25] Additional land acquired since 1974, together with the access right, may have made so-called “horseshoe-ing” easier. There was room for doubt on this, as the 1974 boundary, and therefore the extent of the access right, might possibly not be sufficient. At all events, this was clearly no part of the purpose of the title condition, there being at the time only one drive. Nor do we consider that there is any real need for it now.
[26] The position therefore is that the condition has a clear and important purpose which remains good but is being achieved entirely satisfactorily in another way. The discharge, however, would remove the vehicle access to Rowan Cottage’s garage, causing some loss and inconvenience.
[27] Turning to the factors listed in Section 100, we have covered (f), the purpose. We have identified a highly relevant change in circumstances (a), but also note that there is no suggestion of any other relevant change of circumstances at the subjects or locality.
[28] As to (b), the extent of benefit to the benefited property, Rowan Cottage, we consider that any benefit from having a second driveway leading to the back of the house is negligible. Clearly there is the benefit of vehicle access to the garage, but, again, moving this to a position accessed from the new driveway looks to us like an improvement, although at some unquantified cost.
[29] As to (c), the extent to which the condition impedes the enjoyment of the burdened property, Willow Grove, we have identified the inconvenience of having to co-operate with the neighbour in relation to the driveway. Mr Millar, when asked about this, told us that a burden of such shared access would not reduce the value of Willow Grove. We were slightly surprised by this view, although we recognise that shared access roads or drives are by no means uncommon. Over and above this, however, there is the inability of the owner of Willow Grove to develop or use the land in another way. The applicant is, in fact, engaged in some development of her land and indeed had built another driveway. She clearly wishes to change the use of the driveway. Whatever the intended use, be it landscaping or garden space, further outbuildings or indeed access to further development on the land to the rear of the house, the access right does in our view impede enjoyment of the applicant’s property to a substantial extent.
[30] We doubt whether any of the other factors in Section 100 adds much to the issue of reasonableness. Neither side relied on (d) or (e). Factor (g) in this case really does not add to the picture that there are uses which the applicant intends to and could make of this part of her property if the servitude is removed. Although we think that compensation is something which requires to be considered, factor (h) in itself adds nothing: there is no question of the applicant having offered substantial compensation which has been refused, and no formal claim has yet been made. Factor (i) has no application, and nor in our view does (j), on an objective approach.
[31] As it seems to us, the issue turns on assessment of the position about the garage. If there were no garage, we would simply hold that the purpose of the condition, although still good, was being fulfilled in another way and there was no longer any real benefit to the respondent’s property. The impediment to the applicant’s enjoyment of her property would make the application clearly reasonable. However, removal of this access right will clearly cause loss or disadvantage, in relation to the garage, to the respondent as owner of Rowan Cottage.
[32] The legislation provides for awards of compensation for substantial loss or disadvantage suffered in consequence of such a discharge. In other words, the answer can sometimes be that the discharge will cause substantial loss but it would nevertheless be reasonable to discharge the condition on the basis that the loss can be compensated. The statutory provisions ensure that the respondent can have a claim for compensation decided, and indeed compensation paid, before the discharge is ordered.
[33] We have reached the view that that is the position in this case. We think that the loss and inconvenience to the respondent could reasonably be met by monetary compensation. If the discharge is granted, the respondent will have options including to re-align the garage, to build a new garage or perhaps simply to do nothing and use the garage building as a store. Although we have not heard full argument on this, he appears, on the evidence we have heard, to have a right to compensation. On the arguments made to us, and particularly on our view of the position at the respondent’s property, we feel that this is reasonable. In the circumstances of this case, “imposing” these options on the respondent, together with the opportunity to apply for compensation, compared to leaving the applicant burdened by this servitude, appears to us reasonable.
[34] It is unfortunate that the respondent has not so far formally tabled a claim for compensation, which would have enabled that to be assessed at the same time. There is, however, no formal time limit for such a claim, although we can only consider it in the context of an existing application. We do occasionally indicate our decided view that it is reasonable to grant the application on the basis that the respondent has a brief opportunity to submit a compensation claim. That is what we shall do in this case.
[35] We are accordingly not at this stage issuing our formal decision on the application. Rather, we shall continue it for a brief period to enable the respondent to submit a claim. Our formal decision to grant the application and order a discharge will be made once the position about compensation is resolved. If the applicant were then to decide that she did not wish to pay the compensation, no order for discharge would be made.
[36] To enable matters to be progressed without unreasonable delay, the respondent will, if he wishes to claim compensation, be required to intimate such a claim formally to the Tribunal and the applicant within 14 days. If he does so, the Tribunal will fix a timetable for the claim to be appropriately detailed and vouched and for the applicant to answer it. If parties are unable to reach agreement, the Tribunal will be prepared to consider this issue, with a minimum of delay, on the basis of written submissions.
[37] We would also encourage parties to use their best endeavours to reach agreement on compensation. The Act prescribes the basis of compensation. Section 90(7)(a)(i) provides the only possible basis in this case, as follows:-
“a sum to compensate for any substantial loss or disadvantage suffered by … the owner, as owner of the benefited property … in consequence of the discharge or variation.”
Very often, this is simply the reduction in the value of the benefited property. We did hear evidence from Mr Millar which might suggest a figure on that basis. His opinion appeared to us realistic and his valuation figures not out of line, but he had not inspected the garage in any detail or even seen inside it, and we did not hear any competing evidence. The age and quality of the garage might be thought relevant. The respondent might consider seeking reimbursement of the actual cost of either re-aligning the garage or building a new one, but that would raise much more complicated issues. In the absence of agreement, the Tribunal would of course consider parties’ submissions on the matter.
[38] For these reasons, our decision at this stage is to continue the application and allow the respondent, if so advised, a period of 14 days in which to lodge a claim under Section 90(6) and (7) of the Act for compensation.
[39] Any issue which may arise as to expenses can be decided on the basis of written submissions in accordance with the Tribunal’s normal practice.
Certified a true copy of the statement of reasons for the Opinion of the Lands Tribunal for Scotland intimated to parties on 26 November 2009
Neil M Tainsh – Clerk to the Tribunal