Heritable property – Servitude Right of Access – Proposed variation of route and Discharge of right of motorised vehicles over same route – Planning permission obtained for two storey extension to end terraced house – Access used by adjoining mid terrace owner – Reasonableness – Whether least burdensome mode of access should be assumed – lack of alternative private parking facilities – Prevalence of vehicular access routes immediately to rear of terraces elsewhere in village – Title Conditions (Scotland) Act 2003 Secs 98 and 100.

Heritable property – Servitude right of access – Variation of Route and discharge of right of motorised vehicles over same route – Expenses – Applicants had acted reasonably in seeking variation and partial discharge – Title Conditions Act 2003 Sec 103 (1)

Parkin v Kennedy
23 March 2010

The applicants owned an end terraced house in part of the conservation area in Port Charlotte in Islay. Planning permission had been granted for a 2 storey extension immediately to the rear of and connecting with their existing house. There were 6 houses in total in the terrace with the adjacent house and the next one having a right of access “along a passage known as the Back Road”. This was marked on plan as being 3 metres wide and lay immediately to the rear of the applicants house. A roughly formed track led from the public road to the “Back Road”, the servitude area. The area to the front of the terrace was not within the ownership of the terrace houses although it was laid out as an access track and used as such. In the original deed this area was described as “footpath”. The respondent used the servitude area to bring in fuel and other bulky or dirty goods. He parked cars in his back garden having used the servitude area as access. The terrain did not permit of realigning the route around the proposed extension unless it were restricted to pedestrian use only.

The Tribunal although accepting that the least burdensome mode of access should be assumed, determined that the right of access in this case did include vehicles and refused the application as the ability to gain vehicular access to the rear garden of a mid terrace house and so bring in goods which would be inappropriate to bring in through the house was a valuable right, that there had been no significant change in circumstances in the neighbourhood or in the character of the benefitted or burdened properties. The burden did impact on the applicants but the extent of this was not sufficient to convince the Tribunal that it was reasonable to discharge the servitude.

Awarding expenses to the respondent the Tribunal held that while the applicants had been entitled to pursue their application, there were no circumstances justifying the Tribunal in departing from the normal rule on expenses.

Authorities referred to

Devlin v Conn SLT (Lands TR) 11
Christie v Miller, 23/2/1990, LTS/LO/1088/91
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 Taylor, 25/4/2008, 2008 LTS/TC/2007/35

See full decision:  LTS/TC/2009/35 (Merits) and LTS/TC/2009/35 (Expenses)