[1] The owner of an end terraced house, Belinda Chisholm, applied under Section 90(1)(a) of the Title Conditions (Scotland) Act 2003 (“the Act”) to discharge a title condition which is in the form of a servitude right over part of the side access to her rear garden in favour of the owner of the end terraced house in the adjacent block. The land, so burdened, is used by the benefited proprietors (the respondents in this application) along with some of their own ground, at the side of their house, as a vehicular access to a car garage situated in their rear garden. Such access was first permitted when the benefited property was rented from the local authority. Apparently, at that time the tenant of the (now) burdened property did not own a car and had no objection to this right of access being given to his neighbour. On purchase under the “right to buy” legislation the vehicular access right was incorporated in the respondents’ title by way of a servitude right over part of the adjacent property, without any corresponding right being reserved. On its subsequent purchase by the previous owners, before the applicant, a corresponding burden was placed in the title of that property. It is against that burden that the applicant applied for a discharge. The respondents, Anne and Mary Crawford, the benefited proprietors, opposed the application. The parties agreed to disposal of the application by written submissions and a site inspection.
[2] Following our site inspection, and having regard to the terms of Sec 98 and 100 of the Act, the Tribunal are not satisfied that it is reasonable to grant this application and accordingly refuse it.
[3] The applicant owns the dwellinghouse at 34 Dunn Place, Winchburgh. The applicant’s title, WLN10786, was registered in August 2007 and is burdened by the following servitude, which was imposed by Feu Disposition by West Lothian Council in favour of Thomas Johnston and another, registered on 23 September 1996:
“(Sixteen) there is reserved to the proprietors from time to time of the subjects known as 32 Dunn Place, Winchburgh a servitude right of vehicular access over and across the area of pathway situated within the Feu and tinted blue on the said Plan … ”
[4] The title condition was created in corresponding terms in a Feu Disposition of 32 Dunn Place by West Lothian District Council in favour of the respondents dated 15 August 1989 and recorded in the Division of the General Register of Sasines for the County of West Lothian on 5 September 1989.
[5] The applicant set out various reasons in support of her application. She considered that the condition gave unfair advantage to the respondents by providing them with a right of access which in turn denied her a right of access to her rear ground by vehicles. She claimed that the total width of the space between the two buildings was greater than a “B” class road and was of ample width to provide two separate accesses to both houses. The servitude rights for pedestrians, in favour of the mid terraces houses, did not materially affect the position as there would be no problem with vehicles driving over these areas. Other owners in the street did not have similar conditions inserted in their titles. Although she was aware of the condition when she acquired the property she had not anticipated that the respondents would use it at all times. The presence of the servitude would affect adversely the value of her property were she to sell it.
[6] In terms of the factors set out in Section 100 of the Act, the applicant identified certain changes in circumstance affecting the benefited property, her own burdened property as well as the neighbourhood (Factor (a)). The former hut on the back garden had been replaced by a modern garage and the driveway had been repaired by the respondents. She also referred to a suggestion from one of the respondents that the entire area between the two houses be surfaced in monoblock. She could not afford to meet one half of the cost and the respondents had been unwilling to meet more than half. At other locations in the street each occupier used their own half of the space between the blocks, parked on the street or paved over part of their front garden and parked there. The burden on her property (factor (c)) meant that she was unable to reach her back garden by vehicular means and was unable to park her car, or to wash it, in the area at the side of her house. She was unable to offload goods from a vehicle parked in the central area between the blocks. She would be unable to extend her house to the side over the part of the existing driveway that she owns. Finally she cannot place her refuse bins at the side of her house, resulting in them lying at the rear close to her back window, nor can she erect a screen at the side of her house, to block off views of her back garden. The respondents had raised the level of the pedestrian walkway serving the mid-house in their terrace and it was because of this that they were unable to use this pedestrian access area as part of the vehicular access.
[7] The respondents outlined the historical position as they saw it by highlighting the pedestrian access right along the gable wall of their property in favour of the mid terrace house which included a step effectively reducing the width available for vehicular access. As tenants the respondents had been given a right of vehicular access over part of the land pertaining to the adjacent house, No. 34 which was also tenanted at that time. Conforming to the rights they had and enjoyed as tenants, when the house was sold to them the respondents had been given a servitude right over part of the side land at 34 which at that time was in the ownership of the local authority. When subsequently the applicant’s house was first sold off in 1996 the servitude right granted to the owners at 32 was reflected in the title to 34. In terms of the “right to buy” legislation the local authority had had no option but to conform to what had been the position when the respondents had been tenants. Once the position had been established in the respondents’ feu disposition they were in no position other than to reflect it in the title of 34. The respondents used the driveway to reach the garage erected on the back garden of their home. They denied that the applicant was unable to use her driveway. The respondents’ rights related to access only and did not allow them to park on the access area. Both parties could access their respective rear gardens by vehicles. The space available to the respondents within their ownership was not sufficient because they could not use the area affected by the route of servitude in favour of the mid-terrace house. They denied that there had been any change of circumstances. The condition conferred benefit on the respondents as it provided vehicular access to their rear property which they would otherwise be unable to do. The position in regard to other driveways in the street was irrelevant. The condition did not impede the applicant’s use of her property as the respondents were not empowered to park in the servitude area and she could use the area of land within her ownership to gain access to her rear garden. The absence of corresponding rights in the applicant’s title in comparison to the respondents’ was not relevant. So far as any effect on value was concerned this was no different from when the applicant purchased her house. The purpose of the condition was to provide an access and because of the presence of the pedestrian access the space was needed for the original purpose to be fulfilled.
[8] On the information available and on the basis of our site inspection, we find the following facts to have been established.
[9] The applicant’s property is 34 Dunn Place in Winchburgh, West Lothian. The respondents own 32 Dunn Place. Both are former local authority houses built in the 1950s. They comprise, respectively the right hand end terrace house and the left hand end-terrace house, each terrace containing 4 houses and lying on the north side of the street. There is one further terrace on this side of the street and a further 3 terraces on the south side. They are all laid out in a way which leaves a reasonably substantial area of ground between each of the terraces. In the case of the applicant’s house and the respondents’, their title boundary is along the middle of the land between the 2 terraces. However the applicant’s title is burdened by this servitude right in favour of the respondents over a section of the side land. Both houses are subject to servitudes rights in favour of the respective mid-terraced houses for pedestrian access from the rear to the front to facilitate the carrying round of refuse bins or other bulky items along paths to the rear and side of the buildings
[10] When the houses were built in the 1950s the extent of car ownership was much less than currently. There is now quite extensive on street car parking. A number of occupiers of similar properties have paved their front gardens to provide off street car parking. The gap between terraces has been paved in certain cases and used as separate drives or as a shared drive. In none of these cases is there a fence along the dividing line.
[11] The respondents have created an access route by way of two lines of pre-cast concrete slabs set at a normal car width running up the middle of the gap between the two terraces (“the car access route”). On both sides of this there are the concrete slabs for the access ways in favour of the mid-terrace occupiers. The respondents have erected a car garage within their back garden, 6.25 metres behind their house. As it reaches the rear of the terraces the car access route curves round and leads to the respondents’ garage. The width currently available to the respondents for vehicular access, excluding the pedestrian servitude area on their side but incorporating their vehicular access servitude, is 2.77 metres (9 feet 1 inch)
[12] The gap between the two blocks is 4.825 metres (15 feet 10 inches). The 2.413 metres (7 feet 11 inches) available to both applicant and respondent would be sufficient to permit separate access by cars without encroachment onto the neighbouring ground, but manoeuvring and reversing would be awkward, particularly as one side would be along the gable wall of the respective terrace. It would also require to incorporate the pedestrian access servitude areas.
[13] Both sets of pedestrian access routes incorporate a step. This step would require to be removed before the applicant could take access by vehicle from the public street to her rear garden. Although No. 32 is set at a slightly higher level than No. 34 this is not material in the formation of driveways serving the rear gardens. Likewise the higher level of the rear garden over the street level is not a significant matter. The raised nature of the pedestrian walkway at No. 32 means that vehicles could not use this area for access without physical adaptation. It would require to be reduced in height by approximately 0.15 metres (6 inches) or so and the step removed. Likewise the timber fence enclosing the respondents’ front garden would need to be taken back about 0.33 of a metre (1 foot 1 inch) and brought into line with the gable of the terrace.
[14] No. 34 has not been adapted to enable vehicular access without encroaching on the respondents’ property.
[15] No other house in these terraces appears to have vehicular rights of access over their neighbour’s land. Where common vehicular drives as well as individual ones have been formed in the spaces between terraces these incorporate the pedestrian servitude areas for the mid-terrace houses. Given the limited use of the pedestrian servitude rights and the slow speed of vehicles in private driveways such sharing is a satisfactory and sensible practical arrangement.
[16] There is no evidence of any owners extending their house into the area between the terraces.
[17] The rear garden of No. 34 is lengthy and could easily incorporate a car parking space without significant detriment to its use as a garden.
[18] Section 90(1)(a) of the Act gives us power, on an application being received from an owner of burdened property against whom a title condition is enforceable to:
“(i) discharge it, or vary it, in relation to that property;”
[19] Section 98 of the Act sets out how we must deal with any such application:-
“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.”
[20] Section 100 contains the 10 factors to which we are required to have regard. The ones which could apply 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; or
(ii) where there is no benefited property, confers benefit on the public;
(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, or the consent of some other regulatory 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.”
[21] Neither party referred us to any authorities.
[22] It is clear that following the sales of these two properties to their tenants, there is a degree of inequality in the titles in relation to vehicular access. Apparently, the respondents, as tenants, had been allowed to exercise access over the “joint” driveway and the council presumably considered that when they purchased they were entitled to obtain the corresponding right of access in their title. For whatever reason, there was no reservation of a corresponding right of access in favour of the owners (then the council) of No. 34. Although we do not ignore that background, this application is not concerned with the rights and wrongs of that, or with any question relating to the manner in which the respondents have exercised the right. It did, however, seem to us that there was no real reason why there should not be reciprocal rights of access. We therefore enquired, before considering our decision, whether that possibility had been fully considered. It is, however, apparent from the applicant’s response that she is not seeking that solution.
[23] Accordingly, the question for us is simply whether we are satisfied that it would be reasonable to discharge the servitude right presently enjoyed by the respondents with the result that they would have to use only their own land to obtain vehicular access to the rear of their property. A central part of our consideration has been whether that would be a reasonable and practicable alternative to the present arrangements. That is central to the applicant’s case, and if it is right, the obvious purpose of the servitude right could be fully met and, under factor (b) in Section 100, the extent of benefit to the respondents from the existence of the right would then be negligible. There would be little in the balance of reasonableness favouring the respondents’ position.
[24] Having regard to our observations and the measurements which we took, as recorded in our findings of fact, we accept that it would be physically possible (although only by making some alterations to the footpath and front garden area) for the respondents to drive through their own property to their garage. In our view, however, the appreciably narrower passage, together with the fact that, unlike the present arrangements, the passage would be bounded for much of its distance on one side by the gable wall (even if it were not also bounded on the other side by a fence within No. 34, as might also be anticipated) makes this not a reasonable and practicable alternative. To have to manoeuvre along a passage only 7 feet 11 inches wide, up against a wall on one side, and also to effect the necessary slight turns to enter the garage, on a regular basis (with one direction being necessarily driven in reverse), while not impossible, does not seem to us at all satisfactory.
[25] Our consideration of the Section 100 factors in the circumstances, with the benefit of course of our site inspection, is as follows.
[26] (a) There have been some changes since this condition was created in 1989. No 34 has been sold, but we do not regard that as of any significance in itself. The respondents have made some physical alterations in reliance on the condition. They have erected a new garage which is set slightly in from their boundary. We do regard this as of some significance because it did appear to us that it would create some difficulty if they were required to use only their own land, because of an awkward small ‘jink’ in a restricted space between the garage and the end of their gable wall. The respondents have also raised the level of the footpath along the side of the house and laid paving stones fitting the present course of their access, but we do not regard either of these changes of much significance as they could easily be undone.
[27] There is in our view another significant change of circumstances, albeit of a more general nature. This is the growth in car ownership at this locality, putting a significant premium on off-street parking. It was evident when we were there that there must for much of the time be considerable pressure on parking. That affects the extent of the benefit to the respondents of the present arrangements.
[28] (b) This right of access is in our view of significant benefit to the respondents. Although they are not entitled to park over the applicant’s land, the ability to reach off-street parking and a garage at the rear of No. 32 is in our view of real benefit to that property. As we have mentioned, removal of the right, while not making such access impossible, as well as involving some expenditure in physical changes, is not in our view a reasonable and practicable alternative. It also enables the respondents to have a separate footpath. However, while that is of some slight benefit, we do not accept the respondent’s contention that this right is necessary in order to ensure that the pedestrian access right of No. 30 can be achieved: we agree with the applicant that there is no real reason why such access should not be exercised over a driveway.
[29] (c) The access right obviously restricts the use which the applicant can make, as owner of the burdened property, of the relevant area of her land. We disagree, however, with several of the points made by her in relation to the extent of this. Her opportunity to take vehicle access is of course restricted, much as we have found the respondents’ would be if confined to their own land (although without the additional problem of the position of the garage), but that is not a result of the right, nor would success in the application alter the position. If she did develop vehicle access in her space, the access right would restrict her ability to park, but she could develop parking space to the rear of her house, or at the front of her house, as others in the street have done. Apart from parking, she would not have to ask permission to use her driveway: she has as much right to drive up it (within her property) as the respondents have. We do not accept that the access right prevents the applicant from securing her back garden, although no doubt it has an effect on where she could erect a fence for that purpose. It does not appear to us to prevent her from placing bins at the side of her house, on the footpath which is not subject of this access right, and in any event we would consider that this is a point of very slight significance indeed as she could find space for that to the rear. The right would considerably restrict, and in practice no doubt rule out, any proposed extension to the side of her house, but we noted that there is no sign of any such extensions in this street and there is no extension proposal. The applicant did not address the likelihood of obtaining planning permission, and there is in our view room to wonder what the planners would make of an extension which would have such an effect on an existing vehicle access.
[30] (e) 21years have elapsed since this condition was created. Apart from the general change to which we referred in (a), this does not seem to us to be significant one way or the other.
[31] (f) It seems to us that the purpose of this right is clearly to provide a convenient driveway for No 32, in continuation of arrangements established under the tenancy of the property. We do not accept the respondents’ contention that there was a purpose of continuing the existing rights of pedestrian access in favour of Nos. 30 and 36: as the example of No. 34 shows, such rights in favour of mid-terrace owners do not require the creation of a servitude such as this.
[32] (g) The applicant is not able to point to any use of the burdened property for which there is planning or other consent and which is prevented by this condition.
[33] (h) Neither side has made any point about compensation, and we consider this factor to be neutral.
[34] (j) The fact that the applicant’s property does not have the corresponding right of access might have been thought material, as it did seem to us to suggest an obvious way of dealing with the situation.We would have regarded this as potentially of some significance if the applicant had wished, but respondents had refused to give, the corresponding right, but as the applicant does not want that we are left with the simple fact of the inequality. In other words, we have two neighbouring houses one of which has a more favourable title than the other. Such a historical feature does not appear to us material.
[35] Drawing these considerations together, we are not satisfied that it would be reasonable to discharge this access right. Doing so would have a serious effect on an established feature of No. 32. It would in our view interfere to a marked degree with the purpose of the condition. The alternative vehicle access which would result would not, in our view, be satisfactory. The increased car ownership and pressure on parking underlines the respondents’ reasonable wish to retain this right. Although there is clearly something of an anomaly here, the right, if exercised civilly as the respondents are obliged to do, does not in our view seriously impede enjoyment of the applicant’s property, which she bought in the knowledge that it was subject to the right and that her property did not enjoy a corresponding right.
[36] We therefore refuse this application.
[37] If any issue as to expenses arises, this can be considered on the basis of written submissions in accordance with our normal practice.
Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 17 June 2010
Neil M Tainsh – Clerk to the Tribunal