1. This is an opposed application under Section 90(1)(a)(i) of the Title Conditions (Scotland) Act 2003 (“the Act”) to vary the route of a servitude right of access through the applicant’s property to the respondents’ property, a village hall with parking, situated to the rear of the applicant’s garden on ground sold by the applicant’s predecessors in title.
2. Having considered the parties’ submissions and inspected the subjects, the Tribunal is satisfied that it is reasonable to grant this application, the terms of which are set out in our Order.
3. The applicant’s predecessors in title, Mr and Mrs Mackie, acquired their interest in the subjects of this application, by way of two Dispositions by Roxburgh County Council in their favour recorded in the Division of the General Register of Sasines for the County of Roxburgh on 3 December 1968 and 6 February 1970. The applicant, Herbert Adams is the current proprietor of the subjects known as The Schoolhouse, Linton Downs, Kelso registered in the Land Register under Title Number ROX4345 having acquired the property in 2003. The respondents and owners of the benefited property are Joanne Elizabeth Sudlow, Louise Ann Bryce and Janet Johnstone Stenhouse, as respectively, Chair, Secretary and Treasurer of Linton Village Hall Committee and as such Trustees ex officiis for the Linton Village Hall (“the Trustees”).
The burden as created in both dispositions is in the following terms (though it might be noted that the full wording does not feature in the burdens Entry for the 1970 deed in the Title sheet of ROX4345):
“under the reservation in favour of us and our successors as proprietors of the subjects formerly Linton School and now Linton Village Hall lying to the east of the subjects hereby disponed of a servitude right of access over and across that portion of the subjects hereby disponed at present used as an access tinted blue [1968 Disposition] [and yellow – 1970 Disposition] on the Title Plan, which said right of access shall be at all times exercised reasonably by us and our successors as proprietors of the said subjects formerly Linton School and now Linton Village Hall and so as to occasion as little inconvenience as may be to our said disponees and their successors”;
4. The applicant seeks to vary the route of the servitude right of access which runs through his property to the Village Hall. The existing route is presently shown on the Title Plan as coloured blue and yellow. 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. There is no application for compensation.
5. The applicant was not legally represented. The Trustees were represented by Mr Colin Shaughnessy, Solicitor of Messrs Taits, Solicitors, Kelso. Under Rule 26 of The Lands Tribunal for Scotland Rules 2003, the Tribunal agreed, with the consent of parties, that the matter could be dealt with by way of written submissions and a site visit.
6. The application, which was lodged in November 2009, was accompanied by a sketch plan showing the approximate intended position of the proposed access route. In April 2010 the parties agreed to sist the application to allow discussions to take place with a view to reaching a negotiated settlement but these discussions ultimately proved fruitless. At the formal request of the Tribunal, a detailed and dimensioned 1:100 scale plan, showing the existing and proposed routes together with a brief specification, was submitted by the applicant in April 2011. Both parties lodged written submissions and the applicant lodged correspondence between the parties inter alia relating to usage of the existing access over a number of years.
7. Following the site inspection, the Tribunal indicated, in principle, their intention to grant the application, provided further revisions were made to the 1:100 scale plan clarifying precisely the proposed route particularly where this passed close to existing buildings and showing a 3m easement width through the garden ground. This revised plan was submitted to the Tribunal on 4 September 2011.
8. On the Title Plan the existing access route is shown as being approximately 3m wide in respect of that section of servitude coloured blue and marginally narrower in respect of the short length of servitude coloured yellow.
9. From the public road, the B6436, there is a gated entrance which gives undefined access to a gravelled area between the house and a stone built outbuilding opposite. From this area the present access bears to the south of another stone built outbuilding and runs eastwards parallel to a high hedge. The narrowest point of the existing access (2.45m.) is where the drive bears to the south between a large kerbstone just to the north east of the house and the south west corner of the small stone outbuilding.
10. The access route is bottomed but is covered in grass in places and the precise width is somewhat ill defined on the ground with periodic kerbstones and the hedge to the south and a grassed lawn to the north with stones on the lawn giving an indication of the access route which has a typical width of 2.25m. At the east end, a short section of the access route runs between trees and terminates at the boundary with the village hall with a 3m timber field gate.
11. The 1:100 drawing prepared by McKay and Partners, Consulting Engineers (Rev. A 2/9/11) shows the proposed route bearing to the north from the gravelled area passed the north west corner of the small stone outbuilding and thereafter running eastwards roughly parallel to the existing access route and towards the northern edge of the applicants property. Five mature trees require to be felled and are identified on the plan and a disused telegraph pole also requires to be removed. The overall width of the servitude is identified on the plan as 3m except where this is restricted between outbuildings at which point the width is limited to about 2.55m. The proposed carriageway width will be 2.1m and made from type 1 material.
12. Mr Adam’s principal submissions, under reference to the factors listed in section 100 of the Act, are summarized as follows:-
(a) The increase in the number of dwellings in the vicinity of the village hall represents a change in circumstances.
(b) The proposed access will provide similar access and benefit as the existing access route but will be straighter and have a new and even surface.
(c) The present access route significantly impedes his enjoyment of the garden ground and impedes reasonable development of the property.
(e) Consideration of the length of time since the condition was created was not considered relevant.
(f) The applicant recognises that the purpose of the condition is to give access to the village hall and this will be similarly achieved with the proposed change in route.
(g) the applicant has not sought planning consent.
(h) Compensation has not been offered.
(j) The applicant considers that the Trustees have not responded to his initial or subsequent proposals, have requested no details, have not engaged in meaningful communication nor informed him of their rejection of his initial proposal or given reasons for their apparent rejection.
He considers that the respondents periodically misuse the access.
13. In subsequent submissions the applicant reviewed previous communications between the parties. He submits that in the event of failure to agree, all costs arising from the application should be paid by the respondents and he also considers they should reimburse his costs of the application to the Tribunal. He accepts that an engineer “should specify and sign off the new access route” which will be constructed to a similar standard as exists at present, but initially it was his position that a plan more detailed than his original sketch was required only for registration purposes in the event of the Tribunal granting his application.
14. Mr Shaughnessy’s initial submissions on behalf of the Trustees can be briefly summarized.
(1) It is not self evident that the proposed route would be free from subsidence. Parts of the proposed route are close to open water.
(2) It is denied that the present access is subject to misuse. Any problems that have arisen can be attributable to the attitude of the applicant.
(3) The Trustees deny they have failed to communicate but had also concluded that discussion was likely to be unproductive.
(4) The construction of additional dwellings nearby is irrelevant. The village hall is intended to serve a wider community and there are no limitations in the burdens deeds on the frequency of use of the access.
(5) The applicant’s sketch proposals lodged with the application did not represent an improvement to the access.
15. In correspondence during 2010 and in subsequent submissions the Trustees indicated that they would not object to the access being relocated provided it was, objectively, not inferior to the present access with the work carried out by competent tradesmen and, on completion, checked by an engineer. They also commented on restrictions on use which they say are imposed by the applicant. They wish to avoid these difficulties being applied to the proposed route. They also seek agreement from the applicant that he will bear the Trustees’ reasonable legal fees arising from the application.
16. For this application to succeed, we require to be satisfied that it is reasonable. We have to have regard to the statutory list of factors, in so far as these have an application to the circumstances. We have to consider the various factors and weigh the issue of reasonableness up as a whole.
17. There are clearly strained relationships between the parties and this is regrettable. It is, however, not our function to apportion blame. We should look objectively at the relative merits of the existing and proposed access routes in relation to the servitude. Looking at matters in this way, we have a clear impression that the application based on the revised drawing is reasonable and, in principle, this is not disputed by the respondents.
18. Turning specifically to the statutory factors, we often look first at the purpose of the title condition when it was created (factor (f)). This was clearly to provide access to the village hall. Having regard to the details set out on the revised plan which was prepared following our site visit, that purpose can in our opinion be achieved equally well by the proposed access .
19. We do not consider there has been any material change of circumstances since the servitude was created and whilst there may be additional housing in the vicinity we do not regards this as significant.
20. As far as the extent of benefit to the benefited property, the village hall, is concerned factor (b) the proposed route, which is to be built to a similar standard as at present, should provide a comparable access. The existing access has a narrow and restricted section as it passes next to the small outbuilding to the east of the house. The proposed access route running to the north of the small outbuilding has a similar deficiency but on the basis of the engineer’s revised drawing the proposed alignment appears no worse, and should in fact be marginally better, than the present arrangement. Whilst it is not part of our consideration, it is noted that the applicant has indicated his intention to fence the access route to the south between the outbuilding and the boundary which should ensure his dog is confined to the garden and therefore not impact the users of the access route to the village hall. It is also noted that there are two gates on the proposed access route. One is unchanged and situated close to the public road and the second is in a new position some 33m to the west of the boundary with the village hall. How these gates are used in practice and when they are open or closed, locked or unlocked is not part of this Tribunal’s remit but it is hoped that by repositioning the access, future disputes as to use or alleged misuse can be avoided. We do, however, note, as observed by Mr Shaughnessy, that there is nothing in the titles that restricts, how frequently or when the access may be used. Accordingly, the applicant’s obligations, as a burdened owner, to provide access along the track have not altered, notwithstanding the change of route and erection of a gate.
21. As far as the extent of the burden on the applicant’s property is concerned, we think it is considerable because the present route tends to bisect part of the garden and to some extent may limit future development opportunities. By moving the access towards the northern edge of his property, the applicant reduces the impact of the servitude on his enjoyment of his property without unduly inconveniencing the benefited proprietors in their exercise of the access. We also feel it has the potential benefit of reducing the opportunity for disagreement over usage of the access.
22. In terms of factor (g) the applicant has not sought planning and the change of route may not be regarded by the local Planning Authority as development requiring consent. In any event this matter is not material, in this case, on the Tribunal’s consideration of the merits of the application.
23. We do not think that willingness to pay compensation (factor (h)) is a relevant or material factor in this case.
24. The applicant wishes us to take account, as some other material factor (factor j), of the difficulties that have occurred in the past. In particular the applicant considers that the Trustees did not respond to his initial or subsequent proposals and requested no details of his proposals. This suggestion is rejected by the respondents. The applicant also considers that the Trustees have not engaged in meaningful communication nor informed him of their rejection of his initial proposal or given reasons for their rejection. Again this allegation is rejected by the respondents. It is not appropriate for us to review past negotiations or discussions with a view to apportioning blame nor is it appropriate for the Tribunal to consider these issues under factor (j). However, in any application for variation of a servitude right of access, it is plainly an applicant’s responsibility to provide the benefited proprietors with a properly dimensioned drawing and a clear specification showing his intentions. A sketch plan, while perhaps appropriate as regards an initial informal approach is quite inadequate in circumstances where questions have arisen or are likely to arise as to detail or with comparisons to an existing access. Certainly, on application to the Tribunal formal plans are required. Unless or until the respondents had a clear view of precisely what change was being sought it was unsurprising that communications become fraught. It is the applicant who is seeking change and the obligation falls on him to provide clearly, in writing and by way of properly prepared drawings, all relevant information on which the Trustees could form a view. In our view this was not provided until April 2011 and only after requisition by the Tribunal with a revised drawing lodged in September 2011.
25. The applicant under factor (j) considers that the respondents have periodically misused the access. This suggestion is rejected by the respondents. How the access is or has been used is not part of our remit and does not, in this case, impact on our jurisdiction of considering whether to vary the line of a properly constituted servitude right of access. Accordingly we do not consider this a relevant matter under factor (j).
26. Weighing all this up, we consider the merits of the case favour the applicant and it is noted that in principle the respondents did not oppose the re-routing. We are satisfied of the reasonableness of the application. Our Order will therefore grant the application and make specific reference to the detailed plan (Rev.A 2/9/11) provided by the applicant , a copy of which will be annexed to the Order. It is of course for the applicant to adhere to the plan and to provide an access to at least the same standard as that which exists at present.
27. We have a discretion in relation to the expenses of the application, although we are required by Section 103(1) of the Act to have regard, in particular, to the extent to which the application or any opposition to it has been successful. Both parties made representations in relation to expenses.
28. In this case the applicants have been successful. However, in our view the respondents quite reasonably sought clarification on precisely what was being proposed by the applicant and in principle did not oppose the revised route. The relevant information, in our view, was not available until the plan was tabled in April 2011 and the revised plan was not received until September 2011. The applicant has maintained the view that he should not be responsible for the respondents’ legal costs associated with the variation to the servitude and contends that if his application to the Tribunal succeeds, the respondents should bear his costs including the costs of this application to the Tribunal. That view is rejected by the respondents.
29. With regards to the costs of the application to the Tribunal, the applicant’s position is ill-conceived. It is he who seeks change and the obligation falls on him to bear the costs of making the application to the Tribunal and to provide sufficient detailed information of his proposal to the benefited owners to enable them to come to a considered view and, if appropriate, to make representations in response. As indicated above, the initial detailed plan with outline specification was not produced until April 2011 and the finalised plan following our site inspection and correspondence was submitted in September 2011.
30. It seems to us that, although the applicant has ultimately succeeded, his application would have been unsuccessful up until the revised drawing was lodged in September 2011. Accordingly, and since the Trustees had indicated their willingness, in principle, to agree to the revised route, we determine that the applicant should be liable to the Trustees for their legal costs from the date of intimation of the application until the revised plan was received by the respondents on 22 September 2011. However, in all the circumstances including various periods of negotiation, correspondence and sisting of the application to which both sides contributed, it is right that this award be modified by 50%. Our Order will therefore reflect this finding and we trust that the amount of expense will be such as to enable swift resolution without recourse to taxation.
Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 24 October 2011
Neil M Tainsh – Clerk to the Tribunal