ATD Developments Limited v Weir and Hettrick

1. This is an application to vary a servitude right of access by reducing the extent of ground subject to the right. The Tribunal held an oral hearing of the application followed by a site inspection. Two of the three proprietors benefiting from the access right had reached agreement with the applicants. The respondents are registered proprietors of the third house which benefits from the access. They did not attend the hearing and although they were at the house when the site inspection took place they informed us that they understood that they had made clear in various telephone calls that they no longer wished to oppose the application. There appeared to have been some form of misunderstanding. At all events, the applicants would not be entitled to succeed in the application as of right under Section 97 of the Title Conditions (Scotland) Act 2003 (“the Act”) even in the absence of opposition, so the Tribunal has proceeded to consider the application on the basis of the documentation lodged, the information which we were given at the hearing and our site inspection.

2. The Tribunal has decided that it is reasonable to grant this application on the basis that the variation will only take effect once the alternative entrance to the site from the road has been provided as shown on the applicants’ development plans and as apparently approved by the planning authority.

3. The location is a former school site. The applicants are proprietors of ground on the east side of the site, including a relatively recent building which was a leisure centre and then the applicants’ offices but is now unoccupied and derelict. The west side of the site includes the former school playground over which access from the road to four houses is taken. These houses, and in particular the respondents’ house, enjoy rights of access over the whole of this western side. The applicants’ property extends to an area about one-sixth of this playground area on its east side. That is the area subject to the access right with which this application is concerned. It includes the area where there is an entrance from the adjacent road, although there is another entrance from the road at the other, west, end of the playground.

4. The access rights under which the respondents are entitled and the applicants burdened were created in a disposition dated 2002. A system of access rights appears to have been developed when various parts of the former school premises were sold off. The respondents are also entitled to access over the remainder of the playground area.

5. The applicants have obtained planning permission for a development of six detached houses. They seek to reduce the access area under which their title is burdened in order to create sufficient garden space for two of the houses. As the development is presently planned, they would otherwise have insufficient garden space to comply with planning requirements, although their plans could be altered, for example by reducing the size of the houses.

6. The applicants’ ground presently burdened by the access right in favour of the respondents is a rectangular area of tarmacadamed former playground very approximately 12 by 24 metres. Within the playground it is not physically divided in any way from the rest of the playground over which the respondents also have a right of access and in most of which there is free movement of vehicles. The applicants’ proposals involve reducing the access area in their ground so as to leave space within their ground for a driveway which is 5.5 metres wide at the road entrance end and 3 metres wide at the other end where more garden space is required. The applicants would create a new entrance from the road (the existing one being within the area which they wish to take into the development). This reduced driveway would still not be physically divided from the rest of the playground area to the west.

7. Having considered the circumstances and had regard to the factors listed in Section 100 of the Act, the Tribunal is satisfied that it is reasonable to grant this application. There has clearly been a material change in the character of the burdened property (factor (a)); the condition clearly benefits the respondents’ property, but on the basis of the application that benefit would not be lost, either because the respondents still enjoy access rights over a large area over which there is no physical restriction or, in any event, because the reduced area within the applicants’ ground would itself in our opinion provide adequate access (b); the condition plainly impedes to some extent the applicants’ enjoyment of their property by restricting the area for redevelopment (c); the condition was created quite recently, but apparently in different circumstances (e); there is a clear continuing purpose of the condition, but that would continue to be fulfilled (f); the condition prevents a use for which there is planning consent, albeit the development plans might perhaps be altered (g); and the applicants are not willing to pay compensation, but we accept that their proposal does not cause any loss to the respondents (h).

8. We have accordingly allowed the application to vary the servitude by substituting for the area presently subject to the access right the area shown on the applicants’ drawing No. 07.039:LP03A, the variation to take effect upon completion of the creation of the new road entrance as specified on their drawing No. 07.039:P02.

Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 14 September 2010

Neil M Tainsh – Clerk to the Tribunal