Lands Tribunal for Scotland

OPINION

Parkin v Kennedy

Introduction and Summary

[1] The joint owners of an end terraced house made an application under section 90 (1)(a)(i) of the Title Conditions (Scotland) Act 2003 (“the Act”) for, firstly, a variation of the route of a servitude right of way affecting their property and, secondly, for the discharge of any right of way for motorised vehicles over the same route, should we hold that such vehicular rights existed or had been established. They had secured planning permission for a 2 storey extension of their house, but as the servitude right of way lay immediately to the rear of their house, this could not proceed without a variation of the existing route of the right of way. The application was opposed by the immediately adjacent owner, who is entitled to the right of access. The opposition focused on vehicular access, because the topography makes alteration of the access route so as to continue to accommodate vehicles impracticable. The remaining benefited proprietors, being the owners of the house in the middle of the terrace, did not oppose the application.

[2] Following a site inspection, the application has been disposed of, without an oral hearing, with the parties’ agreement, in accordance with Rule 26 of the Lands Tribunal for Scotland Rules 2003.

[3] The Tribunal has decided, having regard to the terms of the legislation, to refuse the application because we consider that it involves removing a right of vehicular access and, having regard to the factors listed in Section 100 of the Act, we are not satisfied that this is reasonable.

The Title Condition

[4] The applicants’ title to the subjects at 86 Main Street, Port Charlotte, Islay was acquired by them in June 1981. It is subject to the provisions of a Feu Charter by Islay Estates Limited in favour of Angus McNicol, recorded in the Division of the General Register of Sasines for the County of Argyll on 8 December 1934. The title condition in question is a servitude right of way in the following terms:-

“But declaring always that a servitude right of way along a passage known as the Back Road running through the subjects hereby disponed and shown on said plan is reserved to the adjoining feuars and tenants, said right of way or passage running along the back of the dwelling house facing Main Street … ”

[5] The servitude was also referred to in the respondent’s foundation title, viz. a Feu Charter by Hugh Morrison in favour of Mrs Ann McGregor or McIndeor recorded on 1 March 1922, as follows:-

“Declaring that my said Disponee and her foresaids have a right to the use of the carriage way at the back of the house:”

This servitude has not been expressly narrated in the respondent’s registered title ARG4675, but its existence was not disputed. There was undisputed evidence that the respondent uses the access route for vehicular access.

[6] The applicants seek a variation of the servitude affecting their property so that the route of it is changed which would enable them to construct a two storey extension to the existing house. They consider that the servitude does not grant a right of access by vehicles but should we consider that it does they also wish us to discharge such rights for vehicular traffic over the servitude area. No application was made under Section 90(1)(a)(ii) of the Act (dealing with issues of validity etc), but we have considered the applicants’ contention about the extent of the right.

Procedure

[7] Notice of the application was given to the owners of 85 and 84 Main Street. The owner of 85, Martin Kennedy, the respondent, objected. The owners of 84 had previously advised the applicants that they were not opposed and did not object. The Tribunal had the application, objections, adjustments and final submissions, as well as a number of documentary productions, including some photographs. The site inspection was restricted to the rear and front aspects of both the applicants’ and the respondent’s properties as well as a walk through the village.

The Legislation

[8] Section 90(1)(a) of the Act gives us the power, on an application by the owner of a burdened property against whom a title condition (or purported title condition) is enforceable (or bears to be enforceable) to:

“(i) discharge it, or vary it, in relation to that property …”

[9] Section 98 of the Act states:-

“An application for the variation, discharge, renewal or preservation, of a title condition shall … be granted by the Lands Tribunal only if they are satisfied, having regard to the factors set out in section 100 of this Act, that … it is reasonable to grant the application.”

[10] Section 100 lists 10 factors numbered (a) to (j). Those factors which are relevant to this application are:-

“(a) any change in circumstances since the title condition was created (including, without prejudice to that generality, any change in the character of the benefited property, of the burdened property or of the neighbourhood of the properties);

(b) the extent to which the condition—

(i) confers benefit on the benefited property …;

(c) the extent to which the condition impedes enjoyment of the burdened property … ;

(e) the length of time which has elapsed since the condition was created;

(f) the purpose of the title condition;

(g) whether in relation to the burdened property there is the consent, or deemed consent, of a planning authority … for a use which the condition prevents;

(h) whether the owner of the burdened property is willing to pay compensation … ;

(j) any other factor which the Lands Tribunal consider to be material.”

Authorities referred to:-

Devlin v Conn 1972 SLT (Lands Tr) 11
Christie v Miller, 23/2/1990, LTS/LO/1988/91
Graham & Fletcher v Parker, 14/3/2007, LTS/TC/2006/25
George Wimpey (East Scotland) Ltd. v Fleming 2006 SLT (Lands Tr) 2
MacNab v McDowall, 24/10/2007, LTS/TC/2007/23
Jensen v Tyler, 25/4/2008, LTS/TC/2007/35

The Application and the Objection

[11] The applicants put forward various arguments. These included that the second applicant’s mother resided nearby in Main Street, that although they had worked abroad for several years they now wished to live and work principally in their home at No. 86 and to facilitate this they had obtained Planning Permission from the local authority for the desired rear extension. This required to be built over the line of the passageway so far as it fell within their property and they were therefore unable to proceed with the scheme unless a revised route of the right of way was determined. They produced plans of 3 alternative routes which would by-pass the proposed extension. None of these alternative routes was suitable for vehicular traffic. The area of ground from the surfaced public road and lying on the north side of the applicants’ house is very steep and scouring has been caused by the respondent’s vehicle. Vehicles can only back out of this area as it is quite tight. This creates a danger and the scouring has made it difficult for pedestrians to walk to the higher part of the village over this public area.

[12] So far as the issue of vehicular use is concerned the applicants submitted that the least burdensome mode of exercising access should be assumed; that when the condition was created it would not have been envisaged that there would be any need for it to be used by vehicles with the possible exception of a cart; that the proximity of the right of way to the rear of the house and the unsurfaced nature of the area implies that it was never intended for motorised vehicles such as cars, vans and lorries; that non-motorised vehicles such as carts, barrows, prams and bikes would be able to use any of the proposed alternative routes; that, while use of the right of way by vehicles serving the respondent’s house was made these were to their knowledge not frequent; and that there were alternative vehicular accesses available to the respondent, in particular the roadway to the front of his house and the roadway at the rear of his garden. In particular they contended that any material which required use of the right of way for its delivery could be achieved by use of the alternative routes suggested round the new extension with the goods being carried on foot from the access-way to the north of the applicants’ house, a pattern which had been established elsewhere in the village. They had reviewed with their builders and consultants whether it was possible to create a “roadworthy route” but this had been shown to be impracticable and very expensive. The pend or archway proposed by the respondent was completely impracticable. Finally they contended that the respondent did not contribute to the maintenance of the access-way to the front of the houses.

[13] In relation to the statutory factors, the applicants placed particular reliance on factor (c). The current access adversely affected their amenity and privacy. The respondent appeared to be insisting on the full measure of his claimed rights for the sake of it. Reference was made to Devlin v Conn, and to cases both before and under the Act in which variation of access to permit building of an extension to a house, and for other purposes, has been granted.

[14] The respondent’s principal reason for objecting to the application is that there is no alternative right of access able to provide him with the ability to use the rear of his property as he has done in the past. He considers the right of a vehicle access to the rear of his property to be a valuable one. Because of the topography at the rear of his property and of the applicants’ property an alternative access capable of being used by vehicles is not possible. Each row of terraced houses is unique and any blocking off of a rear access route is a particular circumstance, but that in any event there are few areas in Port Charlotte where such a blocking off has occurred, the more common situation being that the rear accesses have remained in substantial use. While access is available by vehicles to his front door it is unreasonable for that to be used for bulky or dirty goods.

[15] The respondent put forward as an alternative solution the suggestion of a pend entry on the ground floor of the extension. This would enable the applicants to construct their proposed extension to the full extent at the first floor level and effectively leave the existing access fully available to the respondent.

[16] The applicants have rejected any payment of compensation. The respondent has reserved his position depending on our decision.

Findings in Fact

(A) Port Charlotte

[17] Port Charlotte is an attractive small village on the west side of Islay occupying an upwardly sloping site fronting the western shore of Loch Indall. The main road south leading to Portnahaven passes through the village (Main Street). The central core of the village consists of a series of terraces each comprising 5 or 6 houses mainly positioned overlooking the Loch. These terraces are over 100 years old but on the outskirts of the village a few newer houses have been built. There are distillery buildings at the north end of the village; it also contains a hotel and pub.

[18] The central part of the village is a Conservation Area. Although the Main Street and the principal side streets are surfaced with tarmacadam there are several narrow passage-ways running in an east-west direction mainly leading to the upper parts of the village connecting in turn to similar passage-ways which run north-south. These passage-ways are, at best, finished with hardcore and in many places are overgrown.

[19] The vast majority of the terraces have passage-ways immediately to the rear of the houses which are accessible by cars and small commercial vehicles from either end. They remain in use at the present time. In many cases there are buildings on the other side of the passage-ways which appear to be used as part of the main house. Small extensions have been made to several of the terraced houses but generally these are narrow and still permit of vehicle access to the rear of the terraces. In one instance where an end-terraced house has been connected to the adjacent terrace running at right angles to it, a pend has been created to allow continued access for vehicles at ground level. The pend appears to have been part of the original form of construction.

[20] There are two major extensions in the terrace immediately to the north of the applicant subjects, at No.33, the southmost house of this terrace, and its immediate neighbour. Both of theses extensions mean that there is no vehicle access to the rear of this terrace from the southern end. Access does, however, remain available from the northern end to the majority of this terrace.

(B) Nos. 84-86 Main Street

[21] No.86, the application subjects, comprises the northmost house of a 2 storey terrace containing 6 houses. The respondent’s house at No.85 is the immediately adjoining mid-terraced house whereas No.84 is one of the two central houses in the terrace. The terrace is on the western and higher side of Main Street. Each of the terraced houses has a rear garden which slopes upwards to one of the passage-ways which bounds the properties on their western side. This is described in the respective title deeds as Road to Gardens (the “garden road”). There is an access-way leading from Main Street immediately to the North of the applicants’ house which eventually leads to the rear garden road bounding the back garden of the individual houses. This access-way is roughly finished and is useable by cars or small commercial vehicles but only so far as the rear of the terrace. Beyond that point it is narrow, has grassed over and would be incapable of use by vehicles. Access to the garden road is available from passages at either end, beyond the access running immediately to the north of the applicants’ house. With the exception of the applicants’ house the houses in the terrace have made turn off points for vehicles from the garden road but they appear to be little used.

[22] The eastern title boundary of the terraced houses is their front wall. Immediately in front, however, there is an area of roughly surfaced land, generally higher than Main Street, and retained by a stone wall which is used for vehicle access and appears to be also used for parking. It is approximately 3 to 4 metres wide. It can be accessed from either end. From the north the access is over the first part of the access which leads up the side of the applicants’ house. At the southern end the access is more straightforward as Main Street by this point has risen and there is less of a slope. Although not within their title ownership the individual owners are responsible for maintaining the area in front of their houses. Vehicles parked at either end of this front land would result in any vehicles at the centre of the terrace being closed in.

[23] At our visit, the respondent’s car was parked immediately to the rear of his house. Access had been taken over the unfinished track to the north of the applicants’ house and subsequently over the right of way immediately to the rear of the applicants’ house. There were 2 further vehicles on the respondent’s land, both shrouded in protective covers and clearly unused for some time. One was on a levelled area about 6 metres from the back wall of the respondent’s house while the other was parked just inside the back fence at the garden road. Small commercial vehicles had used the access to the north of the applicants’ house and the right of way to bring in coal, gas cylinders and other bulky goods. The right of way area appears to have been roughly bottomed at some time in the past and although now grassed over is well established. Vehicle tyre tracks are clearly evident. The respondent’s refuse bin is located at his back door.

[24] The plan attached to the original 1934 title of the applicants’ house appears to be drawn to scale and the width of the right of way as shown on this plan is approximately 3 metres.

[25] The area immediately to rear of the applicants’ house has been roughly levelled for a distance back of approximately 9 metres. Thereafter a rough stone wall retains the higher land further to the rear for approximately half the width of the plot. Beyond the retaining wall there is a rough embankment. The respondent’s land is generally at a higher level and is supported by areas of embankment. To the rear of the retaining wall there is a large mound of stones. On the respondent’s side of the mutual boundary there is a further large deposit of stones and the remains of a dilapidated building. Use of the area to the rear of the retaining wall as an access for either vehicles or pedestrians would not be possible without considerable works to remove the material deposited on both sides of the boundary.

[26] The distance from the back wall of the terrace to the rear garden boundary is approximately 37 metres. At none of the houses in this terrace has vehicle access been taken through the rear garden to the house from the garden road.

[27] A fence divides the respondent’s land from the applicants’ but the length at the right of way is unfenced for a distance of 3 metres. The mutual fence between 84 and 85 runs for the full mutual boundary albeit that there is a pedestrian gate incorporated in the fence. No.84 does not take vehicle access to their land from the right of way but use it for their refuse bin.

[28] There are various outbuildings within the properties at 84 and its adjoining neighbour at 83 as well as a narrow extension so that the right of way is not used for vehicles by these occupiers. Beyond 83 to the southern end of the terrace vehicle access exists for part of its length. At one point a rear building on the other side of the right of way has been converted to living accommodation but this has not been connected to the main terraced house and the right of way remains available for the adjacent mid terrace house.

[29] The applicants’ proposed building extension would occupy about three-quarters of the width of their house and extend back a distance of approximately 4.75 metres. This would permit of a passage round the proposed extension on reasonably level ground which would be perfectly adequate for pedestrian use and for the bringing in of bulky goods by foot but due to its narrowness and the right angles could not be used by vehicles. A realignment of the right of way further to the rear of the proposed extension (to allow for more gradual bends which would be more appropriate for vehicular traffic) would encounter significant problems due to the higher level and slope of the terrain, the narrowness and steepness of the access track to the north of the applicants’ house and, not least, the debris and material located on both sides of the mutual boundary. It would be unlikely to be able to be formed in a way which would allow the respondent to park immediately adjacent to his back door. It would also require a realignment of the right of way so far as it serves No.84.

[30] The applicants have received full planning consent for their proposed extension from the local authority as well as listed building consent, both granted in 2005 and still extant at the date of this decision. In both consents there is reference to the fact that the proposal affects an existing right of way and that the granting of planning permission does not take precedence over land ownership/access rights.

Tribunal’s Consideration

[31] This is an application which comes to us in two parts. The first part is a request for a variation of a route of a right of way round an extension proposed for the burdened property. Without such a variation the proposed extension could not be built as the route of the right of way runs immediately along the back wall of the burdened property. There have been several applications to us involving such a proposal to move the line of a right of way, most notably from former local authority houses where similar rights of way exist in favour of the mid-terraced houses. In such cases, it can often be seen that the purpose of the servitude is just as well fulfilled by the proposed alternative route as by the existing prescribed route, so that preserving the existing route is of no, or at least extremely slight, benefit to the dominant proprietor. Such applications therefore often go in favour of the applicant, principally on the basis that the impediment of not being able to proceed with an extension for which a planning consent has been granted far outweighs the extent of the benefit to the benefited proprietor in retaining an existing access route.

[32] Here, however the benefited party uses the right of way for his private car and for small commercial vehicles on a sporadic basis. Due to the topography of the site an alternative route capable of accommodating vehicles is not practicable. The applicants claim that the right of way does not extend to use by vehicles, with a fall-back position that should we not so find we should grant the application for a variation of the route with a limitation to pedestrian use only. This is in effect the real issue in this case. In the circumstances we propose to proceed on the basis of considering firstly whether the right of way does include vehicular use. If it does, we must go on to consider the case for restricting any variation in route to one of pedestrian use only, in effect a partial discharge of the servitude, and could only grant a variation if satisfied as to that.

[33] The servitude right in favour of the respondent (and others) was first granted in 1934. We accept the applicants’ submission that the least burdensome use should be presumed, but the express wording of this right points in our view to vehicular access. It is described as “along a passage known as the Back Road”. We note the use of capitals in “Back Road” and we also note the use of the word “Road”. The western boundary of both the applicants’ house and the respondent’s is described as being along “a private road”. The northern boundary of the applicants’ house is described as being by a “road”. Finally in both the applicants’ title and the respondent’s founding title in 1922 the land in front of the houses is described in both deeds as “the footpath”. We see nothing in the way the various passage-ways or accesses are described that would indicate any looseness, uncertainty or interchangeability of terms as to what the original disponer intended. In our view, the use of “footpath” for the area in front of the terrace and the use of the word “Road” for the area at the rear points clearly to a differentiation between the two areas.

[34] The most logical deduction from the wording used is that the area to the front was to be a footpath while the area to the rear of the terrace as well as the side and garden road were to be roads. We entirely accept that at these dates cars would be a rarity particularly on Islay. But we doubt if there would be none. Certainly the use of carts would be likely to be the predominant use. It might seem odd when viewed from the 21st century to restrict the front area to pedestrian use only, particularly when it is as wide as the area affected by the servitude. But there is a consistency in the terms used and we see no reason why, at that time, it should not have been the disponer’s intention that foot traffic only should be intended for the front area with vehicular traffic (in whatever form was then appropriate) for the rear access, connected to the road access to the north.

[35] The repeated pattern of development in the older part of Port Charlotte appears to lend support, if such is required, to this view of the title provision. Almost all of the older houses are in short terraces and in almost all cases there is clear evidence of a common access running along the back of the terrace houses, even to the extent in one case of a pend to allow access which would otherwise have been obstructed. The rear accesses were to be used as service accesses with the fronts restricted to pedestrian use only. We accept that circumstances change. There is the evidence that vehicles now regularly use the area which was apparently intended to be a footpath in front of the terrace we are concerned with here. There is evidence elsewhere that vehicles use the front roads. The extent and effect of such change is relevant to the application to vary or discharge, but it does not mean that we can say that the rear roads were not intended for use as they are described, namely “roads”.

[36] Although called “roads” most of these rear passage-ways and their connecting side roads are unsurfaced and in modern terms (and perhaps in larger towns and cities) certain of them would be considered too narrow for vehicular traffic. But that is the character of this locality and these tracks are, in the main, still used for access by cars or small commercial vehicles. There is evidence of tyre tracks in almost all of them. Similar tracks in Port Charlotte are clearly used as access roads. We, accordingly, reject the applicants’ arguments that because it is not finished in a manner which now would be required for regular vehicular traffic in a modern and urban setting the “Back Road” should not be considered a passage for vehicles.

[37] There is no dispute between the parties that the servitude right of access is used by the respondent. He uses it to enable him to park his car at his back door and there are deliveries of coal and gas cylinders. The access way may not be particularly easy and it may require some vehicles to reverse back on to Main Street from the northern access road but in considering whether vehicles currently use the servitude area these matters are not to the point. There may well anyway be a servitude right of vehicular access established by prescriptive use.

[38] In all the circumstances we have come to the conclusion that the servitude right of access over No. 86 in favour of the respondent’s property includes vehicular use. The effect of this conclusion is that the application made to us to vary the route of the existing right of way also involves an application to discharge it to the extent of restricting it to pedestrian use only.

[39] In considering the application viewed that way we are bound by the terms of the Act and in particular require to take account of the factors set out in Section 100. Although we are of the clear view that the right is not, as it stands, restricted as the applicants contend, it may nevertheless be reasonable so to restrict it. Our primary jurisdiction allows us to do so if we are satisfied that it would be reasonable. There certainly have been cases in which the Tribunal has removed rights of access and not simply altered the access route. One type of case is where there had been no other access when the right was created, but another access, as good as, or at least to all intents and purposes as good as, the original access has subsequently been created. Each case, however, depends on its own facts and circumstances, and on weighing up competing views on the factors listed in section 100 of the Act.

[40] Factor (a) requires us to consider changes in circumstances since the condition was first created, in particular any change in the character of the benefited property, of the burdened property and of the neighbourhood. Notwithstanding that it was first created in 1934 we have come to the conclusion that there has been little change in any of the three categories. We can find nothing to indicate any change in the character of either the benefited property or the burdened property. In relation to the neighbourhood, we have already described the prevalence of similar terraced houses and rear service accesses along with the absence of major changes to these. While there are the two large extensions in the terrace to the north the remaining occupants in that terrace appear to be able to gain vehicular access from the other, northern end along a quite clearly formed route which in this instance is a short distance from the back walls of the houses. The predominant impression is that any alterations or changes have been quite minor and in particular have not affected the character of the village, so far as related to this dispute. This remains principally a village of terraced houses with rear access tracks or ways used by vehicles and for servicing the houses. Extensions have mostly been limited in width and while we do not doubt that internally there may have been changes these have not manifested themselves in the external appearance and underlying character of this central part of the village. Anyone buying such a terrace house would, we think, have reason to expect to continue either to enjoy this rear access or, as the case may be, to suffer it.

[41] There are, however, changes which may be thought to favour the applicants’ position. Firstly, it appears that the use of the track in front of the houses has changed. As we have seen, at least the applicants’ foundation title envisaged use of this as a footpath. It is now used by vehicles and to that extent can be seen as additional vehicular access. However, its usefulness as an alternative to the vehicular access in issue, appears to us very limited. There is no suggestion that the legal position about entitlement to use this area, which is not part of either party’s property, has changed. Apart from the legal position, it does not secure a parking facility, because it is not wide enough for passing. Nor does it provide a convenient facility for delivery of bulky or heavy objects to the rear of the respondent’s house. We do not understand there to have been any change in relation to the garden road.

[42] More generally, but also potentially relevant, there has of course been a considerable increase since 1934 in motorised transport. That of course could be said in relation to any vehicular access. It is relevant to the assessment of the extent of the burden, but we do not consider that at this particular location it has been such as to alter our overall impression that the character of these subjects and their neighbourhood has not changed to any marked degree.

[43] Factor (b) requires us to consider the extent to which the condition benefits the benefited property. There is an undoubted benefit to the respondent in this case as he is able to access the area immediately adjacent to his back door by pedestrians and vehicles, but it is the extent of that benefit which we are required to consider. If there was, as an example, an alternative access to that area from say the garden road or from the other end of the terrace then the extent of the benefit might not be significant. Likewise if the right were restricted to pedestrian use only, with a reasonably convenient alternative route around the extension proposed, the extent of the benefit would be quite slight. Neither circumstance, however, applies here. The applicants wish to vary the servitude right to exclude vehicular traffic. The result of this would be that the respondent would be unable to bring his car to the back door of his house. While the servitude no doubt does not itself involve a right to park, it does enable the respondent to park near the back door of his house. It also facilitates other deliveries, such as coal or oil or other bulky items. The alternatives appear considerably less attractive. Regular use of the garden road, access from which is awkward, appears neither convenient nor practicable, quite apart from the additional distance. Alternative parking possibilities are not attractive. The most logical place to park would be in the front area, the designated footpath, but there is no right to a clear entry or egress if it is blocked on either side. Neither the main road nor the brae on the north side would provide parking. Further, bulky and possibly dirty goods would have to be carried round to the back door by hand or would need to be brought through the respondent’s front door The applicants suggest the use of a barrow to take these goods to the back door but this would depend on the attitude of the individual suppliers. At the end of the day solutions could no doubt be found but these would involve the respondent in compromises. We have therefore concluded that the servitude right of way for vehicular use is a feature which benefits the benefited property to a quite significant degree.

[44] On the applicants’ view, these benefits are minor matters of convenience, from which it might be a short step to deciding that it would be reasonable to expect the respondent to give them up. We have no reason to doubt the sincerity of that view. Looking at the matter objectively, however, with the benefit of site inspection, we disagree: vehicular access appears to us to be a feature which benefits the respondent’s property to a considerable degree. While we have not been provided with valuation evidence, we would expect this to be a feature which adds value to the respondent’s house, particularly when its availability to other similar houses in the neighbourhood is considered. As we have said, we require to look at this matter objectively, so that, while the fact that the access is in current use is of some relevance, the exact actual extent of that use by the respondent is not.

[45] The extent of impediment on the burdened property is covered by factor (c). There is little doubt that the servitude right of way impedes enjoyment of the applicants’ property, in two ways. Firstly, suffering such access immediately behind the house is quite an inconvenience which has a considerable effect on the private amenity of the property. We appreciate that the advent of the car and occasional lorry might feel more intrusive, but this vehicular access is a basic feature of the house which the applicants bought, as of many of the other terrace houses at this attractive location. The right, of course, has to be exercised civilly. Secondly, in this case, because of the difficulty about alternative vehicular access, the right prevents the applicants from proceeding with the extension they wish and which, we accept, would otherwise, subject to planning consent, be an incident of enjoyment of their property. Again, of course, the applicants must be taken to have known about the right of way, but this undoubtedly presents a considerable restriction of what they would otherwise be able to do as owners of this property. The alternatives available to them are not particularly convenient. They could place the extension further back in their rear garden leaving the existing right of way untouched, but that would mean that there was no direct connection to the existing house. It would also increase the building cost as the extension would sit further in to the slope and would not share a wall with the existing house. The respondent has suggested a pend entry arrangement allowing the upper floor to connect directly to the upper floor of the existing house but this means that at ground floor level the applicants would be unable to directly access the new extension from the existing house. Furthermore the area allocated to the pend would reduce the floor space available to them in the new extension. There is such an example very close by in the village and on balance it would appear to be a more acceptable solution than a detached building. However the applicants do not have a planning consent for such a proposal and there is therefore uncertainty as to whether it would be approved. It is likely to be more expensive to build. A requirement to proceed in that way would be onerous. As with factor (b) the Act makes it clear that it is the extent of the impediment which we require to take into account. We have concluded that the condition impedes the applicants’ enjoyment of their property to a significant degree.

[46] The next relevant factor applicable in this case is (e), the length of time which has elapsed since the condition was created, in this case 1934. A period of 76 years is not inconsiderable. However the weight to be given to this factor must also, in our opinion, take account of how relevant the condition is in the circumstances currently prevailing. As we have said it remains in our view relevant in this particular neighbourhood and to the benefited property. We accordingly place very little weight against this factor, notwithstanding that the condition is quite old.

[47] Factor (f) relates to the purpose of the right of way. Determining the purpose of the title condition can be important in how the other factors set out in Section 100 are evaluated. In this case, however, there seems no doubt as to what the original purpose was. It was to provide an access over the adjoining owners’ property so that the benefited proprietor could access the rear of his property from the public road to the north, and, as we have held, including vehicular traffic. Thus the essential layout of these terraced properties would be preserved. In our view, this purpose remains good at almost all of the terraces in the village. It can still be fulfilled at this location. The introduction of wheeled refuse bins and the significant changes to motorised vehicles and in particular their number may not have been envisaged in 1934 but such changes we do not regard as rendering the purpose of vehicular access to this area at the rear of the house any less effective. Changes will always arise as time progresses but these do not necessarily mean that the purpose behind a right granted 76 years ago is any less relevant now, provided always these can be seen, as here, to be a natural and reasonable equivalent in today’s circumstances of what they were when first granted.

[48] The applicants have a valid planning consent as well as listed building permission for their proposed extension which will be prevented from being executed by the burden on their property, so factor (g) favours the applicants. This demonstrates the reasonableness in general of the applicants’ proposal, but where the dispute relates to private property rights this factor is of limited importance. The existence of the private title condition is not a relevant consideration for the planners. Nor are the criteria applied in a planning application the same as the list of factors which we are required to consider.

[49] Factor (h) deals with the issue of compensation and in particular whether the burdened property is willing to pay compensation. The applicants have said that they are not so willing and that no compensation should be payable, despite the respondent referring, albeit in somewhat general terms, to that possibility. Whether or not the removal of vehicular access would affect the value of the respondent’s property, its loss would clearly cause him some disadvantage. The applicants’ position would have looked better if they had acknowledged the appropriateness of compensation. However, this factor must be of rather limited application when it is remembered that the Tribunal could, regardless of the applicants’ position on the matter, make an award of compensation, leaving it at the applicants’ option whether to proceed, and pay the compensation, or withdraw the application.

[50] The final factor which the Act requires us to take account of is (j) – the residual, “catch-all” factor. Neither party identified any issue arising within this heading and for our part we also have not identified any specific matter. At this point we should make it clear that we have had no regard to what we would term the personal circumstances referred to by both parties: neither the applicants’, nor the respondent’s, particular personal motivation is relevant. Nor, in relation to the merits of this application, do we find it necessary in this case to enquire into any conduct of either party.

[51] The Act requires us, in reaching a decision on reasonableness in the circumstances of the case, to weigh all these factors up. In this case, we appreciate the extent of the burden on the applicants, particularly of not being able to proceed with an extension for which they have planning permission and which is clearly otherwise reasonable. However, we have found the benefit afforded by this right of vehicular access to the rear of the respondent’s property to be substantial. At other locations, where matters might be expected to have moved on so as to present a very different appearance in 2010 to that of 1934, there might have been such change as to make it unreasonable for the respondent to seek to hold onto this right. At this part of Port Charlotte, however, even after taking account of the development of the motor car, we do not find there to have been such change. In our view, the purpose of this condition remains valid at this location.

[52] The Act permits us, when granting an application to discharge or vary, to award compensation for any resulting substantial loss or disadvantage. So we can grant an application of this kind even if we recognise, as we have done in this case, that the right is of significant value. In some cases, the interests of the benefited proprietor can reasonably be met by compensation, enabling a development to proceed against the proprietor’s wishes. We have considered whether, particularly perhaps in the light of the alternative accesses available, that would be reasonable in this case. However, there comes a point at which removal or variation of a right becomes of such significance as to be unreasonable. We have concluded that it would not be reasonable to remove this right against the respondent’s opposition, even with an award of compensation.

Decision

[53] For these reasons, we are not satisfied that it would be reasonable to grant this application. We have decided to refuse it.

[54] If there is any issue about expenses, the Tribunal can deal with that also on the basis of written submissions, in accordance with our normal practice.