Antony Brown and Janice Brown v Mr and Mrs J M Kitchen and Others


[1] The applicants applied to the Tribunal under Section 90(1)(a) of the Title Conditions (Scotland) Act 2003 (the “Act”) for variation of the route of a servitude right of pedestrian access (the “existing access”) which crossed their garden and allowed the benefited parties, the owners of houses in a development to the rear of their house, direct access to a public road and the foreshore of Aberlady Bay. The applicants proposed re-routing this existing access around the perimeter of their garden. Almost all of the benefited parties objected. With parties’ agreement, the Tribunal has disposed of the application by way of written submissions and a site inspection.

[2] As set out in paras. [37] to [44], we have decided in the particular circumstances of this case that we would only be satisfied that the application is reasonable on the basis of an access route which is 3 metres wide (as against the applicants’ proposed 2 metres). We have reached this view taking account of the applicants’ proposals in regard to the provision of a mirror, lighting and surfacing of the route. The application will be continued for a short while for the applicants to indicate whether they wish to proceed, and if so to provide an accurate plan of the substituted access route. Thereafter, the Tribunal’s final order will be made.

The Title Condition

[3] The existing access right was created in a Feu Disposition of the land on which the respondents’ houses are situated by Luffness Limited in favour of Cunningham of North Berwick Limited and their assignees recorded in the General Register of Sasines for East Lothian on 3 February 1976, as follows:-

“Servitude right of pedestrian access in favour of the Feuars from the North boundary of the area or piece of ground hereby disponed to the main Aberlady/Gullane Road along the line tinted brown on the Title Plan … ”

The applicants’ property, which was in the ownership of Luffness Limited (the Luffness Estate) when the servitude was created, is burdened by the servitude, as shown in the Burdens Section of their Land Certificate under Title Number ELN8505.


[4] The applicants Antony Mark Brown and Mrs Janice Margaret Brown, as owners of Slatehall, Gullane Road, Aberlady, Longniddry, applied under Section 90(1)(a)(i) for variation of the existing access right. The applicants were represented by Messrs Brodies, Solicitors, Edinburgh. The owners of Nos. 3, 4, 5, 6, 7, 9, 10, 12, 13 and 15 The Gardens, Aberlady, submitted joint representations, with Mr Kitchen as the main signatory, objecting. The owners of Nos. 8 and 11 submitted individual representations, also objecting. None of the respondents was legally represented. The application was adjusted on two occasions, eliciting further submissions from the respondents. The parties were given an opportunity to make final submissions in advance of the Tribunal’s site inspection. The applicants then lodged detailed final submissions and Mr Kitchen wrote briefly supplementing the respondents’ previous submissions. The applicants lodged 4 inventories of documents. The respondents’ various submissions had certain documentary evidence appended. The Tribunal carried out an accompanied site inspection.

[5] The applicants accepted, as we understood it, that the respondents all had title to enforce the access right. In their final submission, however, the applicants raised an issue, based on Section 8(3)(a) of the Act, as to whether the respondents had “sufficient interest to allow them to establish a relevant objection to the variation”. The Tribunal has not taken account of that submission, of which no notice was given in the original application or the adjustments. It did in any event appear to the Tribunal that the submission may have been misconceived: although Section 100(b) in effect ensures that the extent of benefited proprietors’ interests is considered, the respondents, having title to enforce, are entitled under Section 95(a) to make representations; further, Section 8 relates only to real burdens, the title condition in issue in this case being a servitude. The only issue for the Tribunal is therefore the merits of the application to vary.

The Issue

[6] Section 98 of the Act provides inter alia:-

“An application for the variation … 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.

[7] The factors set out in Section 100 which could apply in this case 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 the neighbourhood of the properties);

“(b) the extent to which the condition-

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, 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.”

The Facts

[8] We did not understand there to be any significant dispute about the basic factual position, which we have found, on the basis of the materials before us and our own inspection, to be as follows.

[9] “Slatehall”, purchased by the applicants in 2004, is a substantial, part 1 storey and part 1 storey and attic, stone-built house in excess of 100 years old but with more recent extensions, with a slated roof, occupying a north facing site overlooking Aberlady Bay, an area of scenic beauty in East Lothian. The house appears to have been tenanted from the Luffness Estate, which still owns the ground to the east, prior to its sale some years after the creation of the access right. It benefits from being one of a very few houses occupying such a site where the adjoining land is undeveloped. The views to the Bay are uninterrupted although the principal coast road to North Berwick passes immediately to the front of the garden which itself is of limited depth. The house site is rectangular in shape with a frontage to the road of approximately 65 metres and a depth of about 16 metres. The rear boundary comprises an old stone wall, 3 metres or more in height, part of which at least is listed on account of the presence of “bee boles”, receptacles for small beehives in the past.

[10] The house is positioned on the western side of its site and the garden between the house and the western boundary has been laid out with lawns as well as accommodating a sun room and a garage. Vehicular access is taken from this part to the front public road. Windows overlook this area. The main focus for the house is to the west. By contrast the land to the east of the house is not, by and large, laid out, being merely roughly cut grass. It is across this part of the garden that the existing access runs. The location and extent of the existing access right are defined by a line of unspecified width. There are no windows in the eastern gable of Slatehall but an oriel window in the front elevation means that a very small part of the front area of this section of the garden can be seen from within the house. A pathway connects the front of the house to the existing access. There is a small gate at the road side of the existing access and a more substantial wrought iron gate set in the bee bole wall.

[11] To the south of Slatehall and within a former orchard or kitchen garden there are 14 detached houses known as “The Gardens”. The principal access to “The Gardens” is at its southern boundary from the centre of Aberlady. The proprietors of these houses also have the benefit of the servitude pedestrian access through Slatehall. The houses are about 30 years old. They are of similar design and generally 2 storeys in height. The connection to the existing access is by way of a narrow passage, first northwards and about 2 metres wide between the garages attached to Nos. 7 and 8, and then eastwards along a wider passage (maximum width 4.7 metres) running to the rear of No. 8, at this point being attractively laid out with cultivated grassed edges, bushes, shrubs etc. There is a right angled bend where the passage turns eastwards and then a further right angle at the gate in the bee bole wall. A single street light is positioned at the first bend. The passageway is enclosed by the walls of buildings, fencing at the adjoining gardens and finally by the bee bole wall itself. The houses in The Gardens have lounges at first floor level and the windows of No. 7 overlook part of the passage running behind No. 8. Persons of full height walking along the eastward part can also be seen from within No. 8.

[12] The existing access continues through a gate in the bee bole wall leading into and through Slatehall. Within Slatehall it is unfenced and is defined mainly by the fact that it is well established. There is a short length of stone setts along what appears to be one of the boundaries. The path is on average 1.8 metres wide. Although leading straight to the public road it runs at a slight angle to the shortest route. At its closest point Slatehall, as now extended, is less than 2 metres away.

[13] The applicants wish to re-route the access to obtain privacy in the east part of their garden. The alternative route proposed by them runs from the gate in the bee bole wall along the back boundary of the eastern section of the garden of Slatehall, beside the wall. At the eastern boundary it would turn, at a right angle, to the north, leading directly to the public road. The applicants would instal a new gate in the front boundary wall. Within part of this route there is a very large sycamore tree. There is some suggestion that its roots are affecting the stability of the bee bole wall which is leaning at this part. Other trees have been felled within this eastern part of the garden and replacements planted. The proposed route would have a width of 2 metres and be surfaced with a proprietary surface claimed to be resistant to flooding. It would be fenced on the garden side and the applicant has offered to restrict the height of any adjoining hedging to 1.5 metres and shrubbery to 3 metres so that it tapers up from the pathway. Three solar powered lights activated by movement would be installed at appropriate points and a mirror erected at the right angled bend where the route turns north. The width at this bend would be increased to ease the passage of children’s prams or any wheelchairs. After construction by the applicants it would be the responsibility of the proprietors of The Gardens to maintain it.

[14] There is apparently no public right of access through Slatehall, the local authority having confirmed to the applicants that so far as they were concerned the applicants’ garden would not come under the scope of the recent “right to roam” legislation nor did they consider the access to be a public right of way. The access may occasionally have been used by members of the public. There has also been at least one incident of misbehaviour, causing upset to the applicants, by youths. This was satisfactorily dealt with by the police. Generally, there has been little unauthorised use or disturbance. The applicants at one stage locked the gate in the bee bole wall and provided one key for each household in The Gardens, but the residents of The Gardens removed the lock.

[15] A purchaser in the market would restrict any bid for Slatehall to reflect the non-exclusive occupation of the eastern part of the garden. Messrs J & E Shepherd, Chartered Surveyors, Musselburgh, have advised that in their opinion the value of the applicants’ property would be increased by around £15,000, in the region of 2½%, in the event of variation of the servitude right of access in accordance with the applicants’ proposal.

[16] Some key design considerations with regard to footpaths in the planning of new housing developments, in order to ensure good use by the public, are:-

“Provide good visibility along paths and cycle routes, i.e. no right angle bends; if a bend is necessary, items such as guardrail should be used so a pedestrian can see through fencing around corner;

“Provide generous width of footpath (2 metre minimum) with space on either side of the footpath;

“The footpath should be direct and well lit;

“Vegetation is well maintained close to paths to reduce hiding spots;

“The footpath should be easily observed from neighbouring properties;

“Pedestrian and cycle routes should not be located along the backs of properties.”

[17] Realignment of the path does not require planning permission. The applicants sought planning permission for the formation of a pedestrian access with a gate within the low wall on the north boundary and for the erection of a 1.8 metres high close boarded timber fence separating the proposed access route from the rest of their garden. The latter was refused because timber fencing of that height would be harmful to the setting of the listed bee bole wall. Permission was then, however, granted on the basis of fencing only 1.2 metres high with timber posts and thin horizontal metal rails. There was apparently no planning problem with the addition of a gate on the north wall. The suitability or safety of the realigned access route does not appear to have played any part in the assessment of the planning application.

Parties’ Submissions

[18] Parties’ various submissions were detailed and extensive, but the issues between the parties can be summarised quite briefly. We shall refer to more detailed points where appropriate in the course of our consideration of the issue.

[19] In summary, the applicants’ principal concerns about the existing access related to privacy and safety. In practice it was not possible to stop members of the general public using it. The effect of the existing access was to split their garden in two. They were unable to fully enjoy their property. The access route deprived them of privacy in both their house and in their garden. They were concerned by the closeness of the existing access to their house. They had not erected fences along the route as this would have made the division of their garden more pronounced. They also referred to the valuation opinion on the effect on the value of their property.

[20] The respondents were prepared to consider a suitable alternative route which provided the same level of personal safety, their fundamental concern being the potential danger from obstruction of the line of sight on the applicants’ proposed route, in comparison with the existing position. The existing route was straight, so that any party coming from The Gardens would be able to see along its full length and thus ensure that there were no risks arising from any unsavoury character lurking on the route. Because the proposed new route involved a right angled bend any dangers present would not be able to be seen until the user was half way along and at the bend. There was a concern that high planting proposed by the applicants along the inside of the proposed route would further increase the security risks. They were also concerned that at the bend the width would be inadequate to allow children’s buggies or even wheelchairs to navigate round it. A minor additional concern related to the surface proposed.

[21] It was to address these concerns that the applicants proposed installing the solar powered lights and also a mirror at the right angled bend so that the full length of the new route could be seen before any party started to use it. The applicants did not regard the respondents’ claims that the proposed route would be unsafe as being well founded. They particularly pointed to the narrowness and bends in the route within the Gardens itself and to the fact that the respondents had stated that they had not experienced any behaviour causing them concern during the 30 years the right had been in existence. Even if the fears had foundation it did not affect enjoyment of their properties because there was an alternative route through the main part of the village.

Tribunal’s Consideration

[22] The applicants require to persuade us, in accordance with the statutory provisions, that it is reasonable to grant this application. It may often be reasonable to vary a specified access route if the alternative proposed provides a reasonable alternative which, assuming the purpose of the original provision remains good, fulfils that purpose. Each case is decided on its own facts and circumstances, having regard to the factors listed in section 100, so far as relevant. It is not a matter of deciding, as it were, who wins on each factor, but rather weighing all the factors, as we see them in the particular case, in the balance of reasonableness. In this case, we do think that the respective parties have each tended, probably unconsciously, to some extent to exaggerate their positions, coming as they do from their different perspectives which have become entrenched following lengthy discussions to try and reach agreement. That is natural. We have to look at matters objectively.

[23] The applicants wish to introduce two right angles into this presently straight access route across their property, in order to move it to the perimeter of their garden to enable them to establish a private space. That space is apparently to be maintained as garden space: the applicants are not relying on any particular development proposal other than a small orchard. The respondents do not refer at all to the increase in length, which is minimal, but to problems which they perceive about the proposed new route.

[24] We accept that the applicants’ wish to achieve privacy within their property is a reasonable and legitimate consideration. A path open to others running straight across the middle of one’s garden inevitably removes or restricts privacy, even if it is not open to the public but only open to a relatively small number of neighbouring proprietors. There is undisputed evidence that it affects the value of the applicants’ property. This is, however, a matter of degree and it is notable that – this is apparently also not disputed – the previous owners had no particular difficulty with the situation. We would have thought that something quite similar to the applicants’ aspiration of some kind of orchard area could be achieved even with the access in its current route, perhaps with suitable fencing on the Slatehall side or on both sides of the existing path. We also do not see the existing access as providing any significant additional security issue for the applicants, given the low height of the north wall and the lack of any enclosure at all at the east end of the garden. It is also of course to be remembered that this is the situation which the applicants bought and the market price when they bought may be presumed to have reflected it. In any case, this legitimate consideration in the applicants’ favour has to be balanced against other factors, particularly of course the benefit of the present route to the respondents.

[25] We are also in no doubt that the existing access is highly regarded by the respondents and that they have raised a legitimate consideration in relation to the safety of the proposed alternative. This, however, also raises questions of degree. The existing provision does not entitle them to any particular safety measure such as lighting, nor does it prevent the applicants as burdened proprietors from growing trees or vegetation in the vicinity of the path. Given the very high bee bole wall, we would not have thought that the existing right confers 100% security. While it is helpful to have regard to the planning considerations in relation to new public footpaths we do not think that this access right entitles the respondents to full application of these considerations. Nor is the attraction of the scenic sea view from the access path in any way a part of this right.

[26] Turning to our consideration of the specific factors listed in Section 100, we start with a consideration of the purpose of the provision (factor (f)), as this can often be central. The applicants submit that the purpose was to provide The Gardens residents quicker access to the main road and Gullane Bay, and that the variation would continue to fulfil that purpose. They argue that the purpose was not to provide the respondents with views of Aberlady Bay, so that views should not be a consideration. Nor was the access chosen as the safest route. We accept each of these points. The purpose remains valid. Consideration of the purpose, together with the applicants’ acceptance that it can be fulfilled by a different route over their property, suggests that we should not give any weight to the applicants’ suggestion that if the respondents’ safety concerns were well founded they could use the alternative route through the village. As far as safety is concerned, while agreeing that there is no indication that safety was a particular consideration, we think it clear that any comparison between the existing and a proposed alternative route must, in order to be reasonable, include consideration as to how the alternative compares as regards safety.

[27] In relation to change of circumstances (factor (a)), the applicants point to the eastward extension of Slatehall House, suggesting that the applicants are more easily affected by use of the servitude. We accept this, but consider it to be very marginal, particularly when the very limited visibility of the access route from the house is taken into account. It is also argued that there has been an increase in unauthorised use of the access route. We do not find this established.

[28] Factor (b), the extent to which the title condition confers benefit on the benefited properties, is perhaps the most contentious. As we have indicated, the scenic attraction of walking across an open area with a full view of Aberlady Bay over the low wall is not a legitimate consideration, but the safety of the route is. The respondents point to the clear line of sight along the existing route and contend that the re-routing, with a right angle bend and high shrubs or trees behind the wall and hedge will be significantly less safe than the existing straight route across Slatehall where it can all be seen from the road. They support this argument with reference to modern design considerations in the creation of public footpaths.

[29] Against that, the applicants make several points: there would be no blind corner, but rather a “sweep round”; the hedge immediately inside the new fence would be no higher than 1.5 metres high; they have offered to provide lighting; they would provide a superior surface; the outside of the path crossing from the end of the bee bole wall to the road would still be visible from the road; the path would be at least the same width; most of the design considerations referred to would be met, and in any event these considerations were not so relevant at this location as, for example, in an urban situation where there might be more concern about misbehaviour or worse.

[30] Further, the applicants point to the layout of the existing route from The Gardens through to the beginning of the access across their property. That has two right angles, and also has the bee bole wall on one side and fences on the other restricting visibility. It has no mirror and only one light.

[31] Strictly speaking, one might ignore any shortcomings of this other part of the route, the issue being comparison with the existing right over the applicants’ property. It does, however, seem to us useful to consider how a route with two right angles, in the close vicinity of the access route in issue and apparently regarded as satisfactory, is configured. This route, although outside the respondents’ individual property, does have some visibility from the houses, contributing to its safety. What particularly struck us was that, while there is one short narrower passage between the two garages of Nos 7 and 8 The Gardens, most of this stretch is considerably wider, consisting not just of the footpath itself but also verges and planting. It seemed to us that this extra space goes a long way towards making this stretch safe and acceptable to those deciding whether to use this route or go the longer way round. The tight bend had also been ‘shaved off’. Where a path runs between a high wall and vegetation and also includes a right angle bend in the middle, the narrower the space, and the sharper the bend, the less safe, and correspondingly the more inviting to wrongdoers, it will be. While it is a matter of degree, the planning guidance envisaging a generous width of footpath with further space on both sides seems to us to be illustrated by the stretch leading from The Gardens. We think that the width of the access route to be provided is an appropriate consideration in assessing the reasonableness of the applicants’ proposal.

[32] Putting the matter another way, the extent of benefit at this particular location of the existing route, compared to the proposed alternative, depends in our view to a substantial degree on the width of the proposed alternative. The applicants plainly envisage a hedge which is intended to secure their privacy, with even higher shrubs or trees behind it. We do not ignore that the applicants would be entitled under the existing servitude to grow such things on either side of the route, but it would still provide a clear line of sight, which their alternative proposal cannot promise. We also appreciate that there would apparently be clear ground to the east of the north-south stretch, but we can readily understand a reluctance to use these two stretches of the path, with two new right angle bends, a very high wall for part of the route on one side, and a substantial hedge and even higher vegetation on the other, if they are reasonably perceived as too narrow. The relevant drawing produced by the applicants shows ‘2 metres maximum width’ (our underlining). The existing path is rather less than two metres wide, and we do not accept the respondents’ suggestion that the existing route under the title provision is wider, because it seems to us simply to define a line along which there is to be access. However, at this particular location even 2 metres actual width, with the mirror and lights, would in our view compare unfavourably, from the point of view of safety, with the existing straight route. To compare reasonably, the alternative route requires in our view to be considerably wider than the existing path and requires to be of a reasonable width in all the circumstances.

[33] We do, however, note under factor (b) that there is no suggestion that variation (as opposed, perhaps, to removal) of this access route would reduce the monetary value of any of the respondents’ properties.

[34] Factor (c) is the extent to which the condition impedes enjoyment of the burdened property, i.e. Slatehall. The applicants submit that the respondents can be taken to admit that the existing route does impede their enjoyment of their property. Fundamentally, it is submitted, they cannot properly enjoy the majority of their garden, the path being used relatively regularly, including by unauthorised users and indeed litter and dog excrement sometimes being found on it. Anyone could access the applicants’ garden unchallenged without looking suspicious. The applicants had to share their small garden with, essentially, the general public. The applicants intended to develop this area as a small orchard, but could only do this with peace of mind if the route were varied as proposed. Further, the applicants referred to the valuation report: not only would their physical enjoyment be increased but the value of their property would increase. They explained the circumstances of their purchase: the sellers had initially proposed to retain this area and build an additional house on it, and the applicants effectively paid for the privacy of not having such development. By contrast the respondents had not pointed to any effect on the value of their properties.

[35] We agree with the respondents that the applicants have exaggerated the disadvantages of the existing access route, both in relation to privacy and in relation to security. The fact remains, however, that this path across their garden does to a fair degree impede the applicants’ actual enjoyment of their property as well as reducing its value slightly. As the valuation opinion acknowledges, assessment of the effect on value of the ability to re-route the path round the perimeter is difficult, and it should also be borne in mind that the applicants would incur some expense which should perhaps be offset, but these are real impediments to the enjoyment of the applicants’ property.

[36] The remaining factors listed in section 100 do not, in our view, have very much bearing on the reasonableness of this particular application. The title condition was created 34 years ago, a period which, as regards this location and this type of condition, does not appear to us significant (Factor(e)). The applicants can point to the planning permission for the new fence but that does not really relate to a use which the condition prevents and the condition to our mind does not really prevent use of this part of the applicants’ property as an orchard (Factor (g)). Willingness to offer compensation is of no real relevance (Factor (h)). The respondents make some points about the applicants apparently having withdrawn an offer to pay for discharge of the access right, but that is not what is in issue in this application. As far as other material factors are concerned (Factor (j)), the respondents complain that the applicants rejected a proposal for mediation of the dispute, and both parties have made points about the history of attempts to reach agreement. The Tribunal certainly encourages parties to negotiate or consider mediation. It looks to us as if extensive efforts have been made, following which it may not be altogether surprising that the applicants had doubts about a mediation in which they would have needed to reach agreement with each of some 14 other proprietors. In any event the rights and wrongs of that process do not affect the merits of the issue which we have to decide.

[37] Drawing these considerations together, we are firstly clear that the purpose of the condition remains as good as when it was created, as the applicants recognise. We are also clear that the condition does to quite a substantial extent impede the applicants’ enjoyment of their property. The extent of benefit to the respondents becomes a very important consideration: the applicants knew when they bought their property that it was burdened by this right and if, properly considered, it conferred a substantial continuing benefit on the respondents, in comparison with the alternative now offered, when there has been no real change in the surrounding circumstances, that bears heavily on the reasonableness of the application. Having regard to the legitimate safety concerns, it seems to us that the applicants’ present proposal, even if it is taken as guaranteeing a width of 2 metres with lights and a mirror and some increased width at the bend, is too narrow to provide an adequate substitute route. We are particularly concerned by the length of the east-west stretch with the high wall on one side and the hedge, shrubs and trees on the other. Having regard to the right conferred by this title condition, we do not consider that the applicants’ proposal strikes a reasonable balance.

[38] We are, however, clear that it is in principle reasonable to vary this access route, and we do not consider it appropriate or necessary in this case simply to refuse the application. The width of the proposed route was put in issue by the respondents. As we suggested earlier, there can be a reasonable width for this alternative route: the wider the route, the safer it will be. Most of the stretch leading towards the gate in the bee bole wall is 4 to 5 metres wide. Having regard to the width of the existing route and the extent of the applicants’ land given over to the path, and balancing all the factors together, we would be satisfied by the proposed alternative route if it were 3 metres wide with some slight widening of the bend. To our mind that would provide a reasonably safe country footpath bordered by the wall, hedge and vegetation, in substitution for the present straight route.

[39] The applicants will have the opportunity to consider whether they wish the application granted on this basis. They may alternatively choose to withdraw it or have it refused for the reasons which we have set out.

[40] Even if we had been granting the application on the basis of the applicants’ proposal, none of their present productions would provide a plan with sufficiently accurate detail to which the Tribunal’s variation order could be related. Assuming the applicants do wish to proceed on the basis of a width of 3 metres, they will require to produce an accurate plan showing this. The widening which we consider reasonable at the bend involves addition to the access route of a right-angled triangle at the bend at the end of the wall, with south and east sides of 1 metre each, or an equivalent sweeping curve.

[41] On our measurement, which was not intended to be precisely accurate, the south side of the trunk of the sycamore tree was approximately 2.9 metres from the wall. It would accordingly intrude slightly into the access route. The applicants as owners of the land would retain responsibility for it and would require, assuming the tree remains, to keep its lower branches from obstructing the footpath. The same would apply to any of the recent plantings along or beside the north-south stretch.

[42] As far as the lighting, mirror and surface of the footpath are concerned, our decision is based on the applicants’ proposal to provide these, and that will require to be detailed, with adequate specification, on the plan and thus to be incorporated into the variation order. The applicants proposed to provide a “Cedec”, in effect all-weather, surface. We are not clear whether they intended that to cover the whole of their proposed 2 metre width (the existing path being about 1.8 metres wide) or to have grass verges, but we do not envisage the whole 3 metres width of the route being surfaced: the point of the width is to ensure openness. We think the surfaced path should be not less than the average width of the existing path, i.e. 1.8 metres.

[43] We do not, however, envisage the imposition of any new burden on the applicants as owners of the servient tenement. In other words, after these measures have been provided and the variation takes effect, maintenance will continue to be, as it is at present, governed by the law of servitudes, i.e., as we understand it, the applicants as servient proprietors have no positive maintenance or repair obligations beyond ensuring that the route is not obstructed by, for example, tree branches.

[44] The proceedings will accordingly be continued for a short period to enable the applicants to indicate whether they wish variation in accordance with our decision and, if so, to produce an accurate plan, as indicated. The Tribunal will then make its final order.

[45] If any question as to expenses arises, the Tribunal can consider that on the basis of written submissions, as is our normal procedure. It should be borne in mind that the respondents have had some success in their opposition to the application: subject obviously to any submissions on the matter, the Tribunal would not at present be minded to make an award of expenses.

Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 28 October 2010

Neil M Tainsh – Clerk to the Tribunal