OPINION

Elizabeth McNab v Alexander Smith

Introduction and Summary

[1] The applicant owns and lives in a renovated farmhouse which is reached by a farm road. She owns one part of that road subject to a servitude right of access in favour of the owner of the adjoining dairy farm, for agricultural purposes, to a field on one side of the road. She applied under Section 90(1)(a)(i) of the Title Conditions (Scotland) Act 2003 (“the Act”) for a discharge of the servitude, or alternatively variation by restricting it to a shorter length of the road. During the grazing season, there is undoubtedly a degree of inconvenience to the applicant from the farmer’s exercise of the access, although the issue only really arose after the applicant (perhaps not appreciating the legal position, with a degree of justification in the particular circumstances) started doing some work which had the effect of making the problem worse. Since then, there has unfortunately been considerable discord, and protracted court litigation, between the parties. The Tribunal has not explored the history of that. The hearing considered evidence and submissions on the merits, and also, by agreement, heard evidence (but not submissions, these to be made at a later date if required) in relation to a claim of compensation in the event of the application succeeding to any extent. The Tribunal had the assistance of an agricultural expert Assessor, and the Tribunal and the Assessor inspected the locus. Much of the dispute concerned the question whether the respondent had any real need of this right of access, there now being two other gates into the same field from the farmer’s stretch of the road.

[2] In summary, the Tribunal has decided for the reasons given below, in the particular circumstances of this case, that it is reasonable to discharge this title condition, on the basis that the resultant loss or disadvantage to the respondent can be met by an appropriate award of compensation. Unless parties can reach agreement, the Tribunal will require to consider parties’ submissions on compensation.

The Title Condition

[3] The title condition is a servitude right of access (“the servitude”) which was created by a Disposition by James Wilson in favour of Alexander Thomas Smith recorded in the General Register of Sasines for Renfrew on 27 March 1981, of 30 acres of ground together with a heritable and irredeemable servitude right of access over part of the farm road leading to East Hills (sometimes referred to as Easthills) Farm Steading (now the applicant’s property) subject to burdens and conditions including inter alia:-

“(FIRST) our said disponee and his foresaid shall be liable for payment of a one half share of the cost of maintenance and repair of that part of the said farm road leading to East Hills Farm Steading tinted yellow and red on said plan;

“(SECOND) the said farm road shall be used as access for agricultural purposes only.”

The servitude is noted in the Burdens Section of the applicant’s land certificate Title Number REN76047, although it was not always so noted.

Procedure

[4] Mrs Elizabeth Martin or McNab, as owner of East Hills Farm, Lochwinnoch, (“the applicant”) applied for discharge or alternatively variation of the servitude (on the basis that if the application succeeded both of the above burdens ancillary to the servitude would also fall.) Alexander Thomas Smith, West Hills (sometimes referred to as Westhills) Farm, Lochwinnoch, (“the respondent”) as owner of the dominant tenement, maintained objections to the application. The Tribunal sat with an Assessor, John Smith, an agricultural member of the Scottish Land Court, in terms of Rule 24(1) of the Lands Tribunal for Scotland Rules 2003. The application was heard at an oral hearing on 2 and 3 April 2012. The applicant was represented by Ms Slee, Solicitor, of Anderson Strathern LLP, Edinburgh, who called the applicant, her son David Martin and Andrew Leggate, senior agricultural consultant with the Scottish Agricultural College, Ayr, to give oral evidence. The respondent was represented by Ms McLaughlin, Solicitor, of Gillespie Macandrew, Edinburgh, who called the respondent, his brother Brian Smith, John Allen, an agricultural consultant with Kite Consulting, Stafford, and Hugo Struthers MRICS, of Savills, Glasgow, to give oral evidence. Both sides lodged documentary productions, which were the subject of a standard Joint Minute of Admissions agreeing that copies were the equivalent of principals and communications had indeed been sent by the apparent authors to the addressees. The Tribunal, with the Assessor, carried out an unaccompanied site inspection on 10 April.

[5] The applicant had in effect three alternative positions: complete discharge; variation to terminate the right north of a gate, Gate ‘C’, around half way along her section of the access road (thus cutting off use of a gate, Gate ‘D’, close to the applicant’s house at the north end of the access road); or variation to terminate it at a point ‘X’, at the beginning of her section (this alternative relating to the possibility of the respondent opening one more gate into the field in question, just inside the applicant’s section, so as to assist in relieving any problem of ‘poaching’ at the two gates within his section of the access road). A copy of the applicant’s Production 4, showing the location of points ‘C’, ‘D’ and ‘X’, and of two other gates, ‘A’ and ‘B’, is annexed to this Opinion.

[6] It was pointed out on the respondent’s behalf that any decision to discharge or vary the servitude so as to remove the access currently available to Gate ‘C’, with immediate effect, during the grazing season, would cause severe problems because of difficulties, also referred to in evidence, in the use of Gates ‘A’ and ‘B’. The Tribunal appreciates this point, and will consider, if necessary, any motion to supersede its final decision for an appropriate period.

Authorities referred to:-

George Wimpey East Scotland Limited v Fleming 2006 SLT (Lands Tr) 2
Ord v Mashford 2006 SLT (Lands Tr) 15
Colecliffe v Thompson LTS/TC/2008/38, 1.4.2009
G v A LTS/TC/2009/13, 26.11.2009

The Facts

[7] On the basis of the evidence, submissions and our site inspection, we find the following facts proved or admitted.

[8] The Applicant’s Property. East Hills Farm is a former farmhouse lying to the north of a quiet minor road leading from Kilbirnie to Lochwinnoch, from which it is reached by a farm road approximately 370 metres long. The property also includes a paddock and two fields, all to the south of the house and on the east side of the farm road. The property includes around threequarters of the length of the farm road, extending to the south end of the applicant’s fields. The site of a mobile telecoms mast at the south west corner of one of the fields, beside the south end of the applicant’s section of the farm road, within the applicant’s property, is the subject of a registered lease in favour of a telecoms company. The property was purchased by the applicant and her late husband in 1993. The farmhouse was subsequently extensively modernised. The applicant lives in the house. Her son David Martin lived there until 2007 and visits regularly.

[9] The Respondent’s Property. West Hills Farm is a dairy farm based at farm buildings immediately to the south east of the junction between the road leading up to East Hills and the Lochwinnoch road. The farm has been in the ownership of and worked as a traditional small dairy farm, with a herd of around 60 Simmental cattle, by the Smith family for many years, presently mainly by the respondent and his brother Brian Smith, with their father, Mr Smith senior, not now being much involved because of health problems. The farm extends to approximately 34 hectares and comprises about 7 fields in the locality. In particular, it includes what is now one field (“Field 1”), extending to about 4.85 Ha on the west side of the farm road leading to East Hills along its whole length. The southern stretch, approximately one quarter, of the farm road leading to East Hills is in the ownership of West Hills farm, subject to a right of access in favour of the applicant’s property.

[10] The northern part of Field 1, extending to about 3.7 Ha, formerly comprised two somewhat smaller fields which had been part of East Hills Farm and which were sold to the respondent’s father, with the servitude right of access from the farm road leading to East Hills, in 1981. This land, with the servitude, is now owned by the respondent. The two smaller fields had been divided from each other and from the field to the south by stone dykes which have since been removed so as to create, out of the three fields, the present Field 1. Field 1, as well as other fields, is used for summer grazing of the West Hills dairy herd.

[11] An L-shaped field (“Field 2”), also part of West Hills farm and also used for grazing, lies on the east side of the farm road, to the north east of the road junction, between the Lochwinnoch road and the applicant’s two fields.

[12] Access Rights. The servitude, limited to “agricultural purposes only”, was created in the 1981 conveyance of the two East Hills fields to which there would then have been no other access because the upper part of the road leading to East Hills Farm remained in East Hills ownership. This right of access was, for whatever reason, not originally noted as a burden in the applicant’s registered title. A note of it was subsequently added in the Burdens Section, apparently some time after the dispute about West Hills’ use of the upper part of the road started.

[13] The lower part of the farm road, in the ownership of West Hills, had always been used for access to East Hills Farm (to which there is no other vehicular access), apparently without any express title although a servitude right of access would apparently have been established by prescription. In about 1993, when the applicant and her husband were considering the purchase of the farmhouse and the two fields, they or their lenders apparently required an express access right. The applicant’s late husband and the applicant met the respondent’s parents, with the respondent also present. Mr McNab and the respondent’s father did the talking. The respondent’s father readily agreed that East Hills had always had access along the lower part of the farm road. An express right of access was created and conveyed to the applicant and her husband when they purchased.

[14] Farm Road. The farm road leading to East Hills is approximately 3 metres wide. The respondent’s section is unsurfaced, with grass verges and hedges along the sides of Fields 1 and 2. The applicants’ section was similar, except that the boundary with Field 1 was formed by an old stone dyke, until 2003/4, when the applicant’s family carried out works over a period of time, tarmaccing the road and covering the verges with cobbles/field stones laid onto a hardcore base and set into cement. They have also introduced a single electric wire fence on each side of the road, thus preventing cows from walking on the verges.

[15] Field Gates. There are four gates into Field 1. Gate ‘A’ is at the corner of the farm road and the Lochwinnoch Road, on the public road side. Gate ‘B’ is approximately 70 metres up the farm road, within the respondent’s section of the road. Gate ‘C’ is approximately 250 metres up the road, within the applicant’s section. Gate ‘D’ is approximately 350 metres up, also within the applicant’s section, near the entrance to her house. The servitude thus permits West Hills farm to move the herd of dairy cattle along the applicant’s section of the farm road, entering, or exiting, Field 1 by Gates ‘C’ and ‘D’, during the summer grazing season. Gates ‘A’, ‘C’ and ‘D’ served the original three fields. Gate ‘B’ was introduced more recently, following difficulty in resolving a ‘poaching’ problem at Gate ‘A’.

[16] Exercise of the Servitude. The grazing season lasts around 6 or 7 months, during which Field 1, which provides 25-30% of the farm’s grazing requirement, is used on around 50 days. During that season, the herd is generally housed indoors at West Hills Farm overnight and therefore, with two milkings a day, moved once out to the field and once in from the field. After the applicant and her family started to live at East Hills, and before they carried out the 2003/4 works, the servitude was exercised occasionally, apparently normally using Gate ‘C’, without any significant problems or disagreements. During that period, the cows could use the verges, so that on the odd occasions when cars were using the road at the same time they might be able to pass through the herd. During and after those works, the situation changed. The cows could not use the verges and cars could no longer pass safely through the herd. A period of serious conflict and sheriff court litigation over several years followed. The respondent for a while exercised access by using Gate ‘D’. Gate ‘D’ was then rendered unusable by the insertion, apparently on the applicant’s behalf, of cobbles and sets at the gate. Thereafter, Gate ‘C’ was often used. When moving the herd, attention is required both at the field gate and at the public road. A normal period for movement of the herd from Gate ‘C’ to the West Hills milking parlour across the road would be about 10 to 15 minutes. There were allegations of more time being taken and movements happening at irregular and unpredictable hours of day (and sometimes more than twice if the herd was being milked three times; a practice which can increase the milk yield). Parties were unable to agree on either of two options identified in a joint report by Mr Leggate and Mr Allen in July 2009. Since 2009, the court proceedings have been sisted on the basis of an agreement whereby only Gate ‘C’ is used, there are no movements between 7.15 a.m. and 9.15 a.m. and the applicant is given prior notice on a dedicated telephone line. That arrangement has been followed, with the result of reducing conflict and tension, but still involves a degree of inconvenience to the applicant as resident owner of East Hills Farm, particularly as the arrangement does not involve any use of either Gate ‘A’ or Gate ‘B’.

[17] Respondent’s Agricultural Practices. Grazing fields can be ‘strip grazed’ with the use of moveable electrical fences restricting the cattle to strips, thus ensuring maximum grazing efficiency. The respondent does not operate a complete strip grazing method in Field 1 but does sometimes use electric fences to keep the cattle in one section of the field, for example by putting the cattle in at Gate ‘C’ and using such a fence to keep the cows in the upper half of the field. Drinking water for the cows in Field 1 is taken from a burn running along most of the west boundary, i.e. on the other side of the field. The bank of the burn is mostly quite steep but in one or two places has been eroded so as to provide a lower “watering hole”. The herd is well looked after and healthy, with the respondent himself attending carefully to the cows’ welfare at milking and other times.

[18] “Poaching”. The Lochwinnoch area experiences substantial rainfall, to varying degrees from year to year. Field 1 has uneven north-south and also east-west slopes. From time to time, particularly during the early part of the grazing season, areas of Field 1, particularly areas around gates used with any frequency for herd movements, are liable to poaching, i.e. wet, muddy conditions which are inconvenient, causing the cows discomfort and potentially diseases such as mastitis, and also requiring time to be taken cleaning them before milking. Cows might sometimes simply refuse to walk across heavily poached areas. The respondent claimed that Field 1 could as a result not be used simply on the basis of movement through Gates ‘A’ and ‘B’. Some limited, and apparently not very successful, attempts had been made in previous years to solve the poaching problem at Gate ‘A’. No attempt was made to improve it at Gate ‘B’. The “watering holes” are also liable to poaching. Lower-lying areas, i.e. generally at the south end nearer the public road, and on parts of the west side where the ground slopes away to the burn, are heavier land and liable to poach in some areas.

[19] Field 2 has gates at the corner at the bottom of the farm road and, some 250 metres to the east, directly onto the Lochwinnoch Road. Field 2 is also sometimes used for grazing. The areas around these gates, particularly the corner gate, are also liable to poaching, and when this field is used the herd is taken down the road to the eastern gate into the field, and brought in from the field at the corner gate.

Expert Evidence

[20] Both Mr Leggate and Mr Allen have many years’ experience, including experience as senior consultants, in dairy cow management.

[21] They prepared a joint report in July 2009. This was intended to assist the court, the aim being to agree an agricultural solution. It identified two options. Option 1, identified as “best agricultural practice”, involved using gates ‘A’ and ‘B’ as often as possible, with gate ‘C’ only used if poaching was a problem at ‘A’ and ‘B’ or as a means of improving access to the top of the field for grazing. Gate ‘D’ was not required. Gates ‘A’ and ‘B’ could be improved with drainage and the provision of hardcore bases. Option 2 was an alternative solution eliminating the use of gate ‘C’ in order to avoid dispute about the extent of use of that gate. This involved, additionally, the creation of a roadway, ideally of concrete, within Field 1, from ‘A’ to ‘C’.

[23] Mr Leggate had prepared various reports on the respondent’s farming practice and in particular his use of Field 1 and the road leading to East Hills.

[24] In a report dated June 2007, prepared in connection with sheriff court proceedings, he had concluded: (i) in using Gate ‘D’, as observed at that time, the respondent was using the road in “an unreasonably and overly burdensome was … a total waste of time to all concerned”; (ii) the respondent’s approach to moving cattle was “normal agricultural practice”; and (iii) use of Gate ‘A’ alone was the best alternative practice to using the road, and the second best alternative was to use Gate ‘A’ to access the field and ‘B’ to exit from it.

[25] In a supplementary report dated November 2010, Mr Leggate confirmed that Option 1 was still the best agricultural practice but that Option 2 was an alternative that would reduce the likelihood of further disputes. He considered that exclusive use of ‘C’, even with notice of use, was not the best acceptable practice since it could be disruptive to road users. He accepted Mr Allen’s finding that access to the field would be needed around 45-54 days per year. The number of times ‘C’ would be needed would depend on the level of poaching and should only be around 10% maximum. If ‘A’ and ‘B’ were both used neither should become poached.

[26] In his final report dated March 2012, Mr Leggate noted the current practice of using only Gate ‘C’ even though ‘A’ and ‘B’ were nearer the farm. No cars could filter past the cows on the road up to the field. He concluded that gate ‘A’ should be used to move the herd to and from the field with ‘B’ as a reserve if and when the area around ‘A’ was poached. There would be no disadvantage in not using ‘C’ and its loss “will not result in any loss of financial viability of the business”. Use of ‘C’ would not improve grassland management.

[27] In oral evidence, Mr Leggate reiterated his views. He acknowledged that additional gates reduced the risk of poaching and that the current grazing practice suited the respondent. He said that poaching at ‘A’ would not be any worse than at ‘C’. Use of ‘C’, as well as ‘A’ and ‘B’ had been envisaged in the previous Option 1 in order to “save face”. Mr Leggate introduced the idea of a third gate, in the nature of an emergency gate, at a point around the boundary (‘X’), to reduce the risk of poaching, although a third gate was in his view a luxury. He said that any gate could be used to “strip-graze”. There was no advantage in using the top gates. Use of these gates wasted time. Mr Leggate agreed that the herd was well looked after, but expressed a concern that they were walking on the hard core and road surfaces, which he saw as unnecessary.

[28] Mr Allen had prepared a preliminary report for the respondent in February 2007, before visiting the site. He estimated the required use of the field during the grazing season at 45-54 days. He considered that there was an agricultural reason for using Gate ‘D’ for part of the year and that there was scope for reducing this requirement by fencing and using other gates at suitable times, especially if they were improved.

[29] In a subsequent report in November 2010, Mr Allen indicated that the informal agreement entered into in July 2009 appeared to represent a reasonable exercise of the right. However, he still considered that there was agricultural benefit in using gate ‘D’ On the assumption that ‘A’ was not used because it was unsuitable, he suggested that use of ‘B’ and ‘D’ would be around 10 times per year, thereby reducing use of ‘C’ by approximately 20%.

[30] In his final report dated March 2012, Mr Allen noted that there had been no significant changes in the respondent’s farming practice. It remained his view that there was a case to be made for allowing access to the top of the field, but he accepted that there was no need for Gate ‘D’ now, as it could not be used safely.

[31] In oral evidence, Mr Allen maintained the same views about use of ‘C’ and ‘D’, and considered that if no access was available by these gates improvements would be required to ‘A’ and ‘B’. A lot of work would be required to remove the problems at ‘A’. ‘C’ was preferable to ‘B’. He said that Mr Leggate had in July 2009 agreed that it was good practice to have access to as much of the field as possible, both in relation to poaching and in relation to grazing practice, and he was surprised that Mr Leggate had changed his mind on ‘C’. There was an advantage in grazing down from the top. He was also surprised that ‘C’ was currently being used exclusively. He saw no value in creating a further gateway into the field at ‘X’, close to ‘B’ and at the narrowest part of the field.

[32] Both experts agreed that some form of ‘block’ grazing in the field, using electric fences, might be appropriate but ‘strip’ grazing was unlikely to be appropriate given the traditional nature of the current farming practice, the relatively heavy soil and the topography of the field.

[33] Mr Struthers is an experienced rural property and valuation surveyor. He had seen the agricultural consultants’ reports. His report on behalf of the respondent addressed the extent of any loss or disadvantage if the servitude right was varied or discharged. In his view the loss of the servitude would not have any substantial impact on the value of West Hills Farm, partly because in the event of a sale a purchaser using the land for sheep or beef cattle would not seek the same number of access points to the field. He did consider that there would be a disadvantage if Option 1 was implemented. He addressed the required accommodation works, on an approach comparable to that on compulsory purchase, and the costings, in relation to either option. In his opinion, on that approach, the cost of creating a new concrete road within the field, replacing the access lost, i.e. from ‘B’ to ‘D’ in the case of Option 2, should be the basis of any compensation payable, together with loss of productive land and legal costs. Any betterment involved would be balanced by the acceptance of sole responsibility for maintenance.

Applicant’s Submissions

[34] After referring to the applicant’s alternative positions as recorded above, Miss Slee recognised that the Tribunal might consider compensation appropriate. She briefly referred to the Tribunal’s opinions in Wimpey v Fleming, at 10L-11A, and Ord v Mashford, at 20J-K and 24C, on the need to consider matters in the round; on the significance of the purpose of the condition; and on assessing the significance of changes in circumstances. It was necessary to determine the purpose of the condition and whether that remained current, and to consider changes in circumstances, while also recognising the possibility of compensation. She then made submissions on a list of proposed findings of fact.

[35] Ms Slee indicated that while the verges might be included in the access right, that was not important because the issue related to use of the length of the track and the applicant did not place any significance, as a change of circumstance, on the tarmaccing of the track. The most relevant evidence was from the agricultural experts as to use which might be made of the gates. She submitted that Mr Leggate had been considering what was appropriate and reasonable; Mr Allen, more the optimum grazing practice. Mr Leggate’s evidence was to be preferred, recognising the difference between Option 1 in the Joint Report, including, as a matter of best practice, some use of Gate ‘C’, and what would be reasonable. Neither expert had opined that Gates ‘A’ and ‘B’ could not be used, and the respondent’s evidence did not establish that. Little turned on evidence of recent practice, Gate ‘A’ having previously been used. There was no evidence that ‘strip grazing’, as referred to (and for which Gate ‘C’ would be optimal), was being practised. Using Gate ‘A’, the cows would find the good grazing. Ms Slee reviewed the evidence about possible mitigation measures, referring to Mr Leggate’s evidence that ‘A’ and ‘B’, properly hardcored and with some re-positioning of ‘A’, would be ample, or alternatively, if that were not thought sufficient, an additional gate at ‘X’ to “nail it”. In relation to a possible new road, ‘like for like’ was not necessarily appropriate. On the evidence, there would be no capital loss. There was no evidence that it would not be viable to farm without the use of Gates ‘C’ and ‘D’. There was a range of materials and costs, and betterment might arise.

[36] Considering the statutory factors, the purpose of the condition was to allow access to two self-contained fields. There had been a material change, as in G v A and Colecliffe v Thompson, supported by the fact that Gate ‘A’ had predominantly been used. Optimal best grazing, using Gate ‘C’, was not part of the purpose. The purpose could be fulfilled without the servitude. If the purpose were to allow a multitude of gates, that could be achieved by a third gate at ‘X’. The purpose of an access right was to give access to a particular place, not in a particular way or the way the benefited owner was used to (Wimpey, supra). Sightlines at ‘A’ were not a difficulty. There was no benefit in Gate ‘D’ and some, hypothetical, benefit in Gate ‘C’. To the extent that there was benefit, that could be met by an access road in the field and by access at ‘X’ It would be advantageous, or at least not detrimental, to use ‘A’, ‘B’ and ‘X’. As to the burden on the applicant, it was clear that conflict had been caused because of her inability to get into or out of her property. The ‘holding’ arrangement was not a practical, long-term solution. Making another drive on her land was a theoretical option but not reasonable when the cost, and the cost already incurred in tarmaccing the road, was considered. On balance, it would be better to use the respondent’s land. The possibility of conflict was relevant under factor (j). Looking at all these factors, particularly the purpose, the change of circumstances, the extent of the burden and the steps which could be taken, it would be reasonable to discharge the condition and consider whether compensation might be due. It had not been possible to envisage conditions which might be imposed in any order by the Tribunal.

Respondent’s Submissions

[37] Ms McLaughlin submitted that it was not reasonable to grant the application for either discharge or variation of the title condition. In relation to the applicant’s awareness of the title condition, she submitted that a competent solicitor would have advised of the existence of the servitude, which would have shown up on search of the Sasine Register, it being normal to examine break-off writs. Access had been allowed. Effective grazing fell within “agricultural purposes”. There was clear evidence of exercise of the right since 1981. There was no reason not to use the access road. The respondent’s evidence that he would not use Gate ‘A’, and would only use ‘B’ occasionally, for the reasons he explained, should be accepted. The respondent saw the 2009 agreement as surviving these proceedings, and would undertake to give prior notice of access and not to take access before 9.15 a.m.

[38] Ms McLaughlin had nothing to add on the legal approach: each case depended on its own facts. Reviewing the statutory factors, she first submitted that the purpose of the title condition was (i) to provide access and (ii) to allow the farm to operate effective grazing management. This was intended to provide flexibility and the exercise of a discretion to use Gates ‘C’ and ‘D’. The original dykes were of no significance as the farm owned the bottom field and so could remove them at any time. They had been replaced by electric fencing and there was no significant change of circumstances: the respondent still owned all the field to the west of the road. The ornamental stones laid by the applicant represented a change of circumstances but the cows could get up and down the road. The respondent, while continuing to oppose restriction to point ‘C’, now accepted, on the evidence, that the farm could get by without using Gate ‘D’, but that did not apply to ‘C’. The alternative gates could, on the evidence, be used some of the time but certainly not all. On the extent of the benefit to him, the respondent knew what he needed, and Mr Allen’s evidence supported that. Their evidence should be preferred to that of Mr Leggate, who was not looking on this as a traditional farm but rather on ways in which it could be improved. Ms McLaughlin set out a number of benefits, emphasising health management and also the safety hazard because of the level of the public road in relation to the field entrance. The evidence showed that these benefits would not be obtained with the use of Gates ‘A’ and ‘B’ alone. A new gate at point ‘X’ would be of little use.

[39] As to the extent of the burden, Ms McLaughlin submitted that it was not unusual within an agricultural community to have a road used by animals and farm traffic. It was accepted that some difficulty was caused but it had never been a problem before 2003/4. Further, the difficulty would on any view continue on the lower part. Dung on the road was not very significant. In relation to the applicant’s willingness to compensate and the offer of a new track in the respondent’s field, that would result in the loss of good grazing land, but if the application were successful, the track described in Mr Struthers’ report (from ‘B’ to ‘D’) was the only reasonable alternative. Laying hardcore and improved drainage at ‘A;’ and ‘B’ would not effectively deal with the poaching problems.

[40] In relation to factor (j), Ms McLaughlin referred to the possibility of building an alternative road on the applicant’s property, as a reasonable solution to her problems She also mentioned the effect on maintenance obligations. The respondent’s wish to retain the character of the land as a working dairy farm was also relevant. Asked about the possibility for conflict, Ms McLaughlin said that behaviour was not relevant.

Reply by Applicant

[41] Ms Slee pointed out that there was some dispute as to whether the ‘holding’ arrangement was intended as simply an interim arrangement, neither of the present solicitors having been involved in its negotiation. At all events, it was an inherently personal agreement which should not affect the Tribunal’s consideration.

Assessor’s Advice

[42] Mr Smith assisted us with explanation, where required, of some of the evidence on agricultural matters. Mr Smith had a general impression of a very traditional farm run in a traditional way. The grassland was not utilised to the maximum. Productivity could be improved with investment but that did not mean that anything was being done badly. The farming practices were acceptable.

[43] We sought Mr Smith’s advice on the following questions:-

(i) Are gates ‘A’ and ‘B’ viable points of access/egress for the herd of cattle to Field 1? If so, what, if any, improvement of the areas around these gates is reasonably required?

(ii) As a matter of agricultural practice, how much, if any, benefit does use of Gate ‘D’ provide?

(iii) Similarly, how much benefit does use of gate ‘C’ provide?

(iv) What effect would the removal of (a) access to gate ‘D’, and (b) access to gates ‘C’ and ‘D’, have on the West Hills Farm business?

[44] In summary, Mr Smith advised as follows:-

(i) Gate ‘A’

Yes. Access onto the public road from the field and vice versa is not a problem. The gate will suffer from some poaching, which might be made worse by changing the position of the gate to make it open onto the farm road rather than the public road, because banking at the hedge beside the farm road enables water to run down the road. A bottomed, concrete hard standing of approximately 260m2 (in an irregular shape) should be created, and drainage (plastic with gravelled backfill) alongside the hedge to the burn (approximately 110 metres) also provided, so as to make this gate useable, particularly in conjunction with use of at least one other gate, for most of the grazing season. Fencing to direct the cows up the field, away from the wetter part of the field, could also be added. A new larger gate should be provided.

Gate ‘B’

Yes. An area of approximately 64m2 (8 metres square) should be cleared of topsoil, hardcored and topped out with woodchip, and a drain from this gate to the hedge side drain (again, around 110 metres) also provided. This would have the additional advantage of collecting water which would otherwise run to the area around gate ‘A’.

With these improvements, gates ‘A’ and ‘B’ would normally be adequate for the grazing season, and there would be little advantage in adding another gate at point ‘X’.

(ii) It is hard to find a good agricultural reason for the continued use of gate ‘D’, which appears to have been redundant for some time without detrimental effect on the dairy farming operation.

(iii) Gate ‘C’ is at a high point in the field. No surface water will run into it, but it has evidently poached with heavy use in the recent grazing seasons. There is an advantage in allowing access by cows further into the field. This allows cows to access grazing on the higher part of the field without tramping down the lower part. This gate could be simply and relatively inexpensively improved, without requiring any further drainage. The walk down from this gate is not an overly long or stressful walk for the cows and it would not be an unreasonable practice for a dairy farmer to move the herd in and out of that gate during the grazing season.

(iv) (a) None.

(b) Loss of gate ‘C’ would remove the direct access to upper parts of the field, which slightly enhances the grazing management of the field. It would also create more pressure on Gates ‘A’ and ‘B’. This could be compensated by the measures described at (i) above and by providing a fenced track (180 x 3 metres, with a porous membrane, finished with woodchip, and with a rolled hardcore entrance area) from Gate ‘B’ to gate ‘C’.

[45] Mr Smith also advised that he did not accept Mr Leggate’s criticism, on welfare grounds, of walking the cows on the hard surfaces.

Tribunal’s Consideration

[46] The approach to the exercise of the Tribunal’s jurisdiction under Section 90(1)(a)(i) of the Act is laid down by Sections 98 and 100 and well established. We are only to grant the application, in whole or in part, if we are satisfied, having regard to the factors listed in Section 100, that it is reasonable to do so. We must, having considered the relevant factors, answer the question as to reasonableness as a whole, on the facts and circumstances of this particular case. Our site inspection plays a very important part. No two cases are the same, however similar they might appear on paper.

[47] There is therefore a very limited amount to be learnt from other cases. It may, however be worth mentioning that applications for discharge or variation of title conditions in the form of access rights might possibly be seen in three broad categories. Firstly, and quite commonly, an application may simply be to vary the route of a defined right of access through the applicant’s property, as for example where the applicant, the burdened proprietor, wishes to build an extension over the route and proposes an alternative route provided at his expense over his property. Secondly, an application may be for discharge on the basis that the benefited proprietor has another access (which perhaps did not exist when the servitude in question was created) so that, it is argued, it would be reasonable simply to bring the servitude to an end. Thirdly, an application may envisage the possibility that the benefited proprietor, although he has an alternative access available, might have to take steps to improve that alternative access in some way. It might be thought that depriving the owner of a servitude right of that right, on the basis that that owner should be expected himself to take steps to remedy the loss, i.e. the third situation, requires considerable justification. Amongst the previous cases referred to, Colecliffe v Thompson can be seen as a case in the second category, but G v A had at least some element of the third situation, insofar as the benefited proprietor might have to carry out some works to make his garage accessible.

[48] This case also has elements of the third situation as well as the second, insofar as there was a common view that if the respondent was going to be required to use Gates ‘A’ and ‘B’, some improvement of the ground around these gates would be required. There might also be a need to provide a road or track leading further up the field. The statute does not place such an application in any different category, but it does raise an issue as to compensation. The statutory provisions in relation to compensation involve the recognition that discharging or varying a title condition may indeed cause substantial loss or disadvantage which can reasonably be met with an award of compensation rather than refusal of the application. Put another way, an application may only be reasonable on the basis of some form of compensation for substantial loss or disadvantage. Ms Slee’s submissions on behalf of the applicant clearly recognised this possibility. We must bear in mind that under the procedure agreed by the parties (a procedure to which we agreed but which, with hindsight, has perhaps made the task at this stage more difficult in this case) we have not yet heard closing submissions on the claim of compensation. There may be submissions on the appropriate basis of any compensation award. However, we have heard evidence in relation to works which the respondent might be expected to have to take in the event of the application being granted to any extent, and we have found it necessary, in reaching our decision on the merits, to take account of this evidence and form at least some provisional views on it. We have recorded above the Assessor’s advice on works which could be undertaken. We have not at this stage addressed the evidence which was given in relation to costings of such works.

[49] The respondent, particularly in a case in the third category, where the applicant envisages the respondent having to take steps to improve or create another access, might argue that the application is not reasonable because the applicant could reduce or eliminate the burden in some other way. The respondent does take such a point in this case, arguing that if she is unhappy about the extent of the burden on her, the applicant could create another access road on her own land. We require to consider that possibility also.

[50] There has clearly been a lot of conflict between the parties, but, as both sides sensibly accepted at the hearing, it is not our function to adjudicate on parties’ behaviour or on whether the respondent has or has not exercised the right of access civiliter. We have to look objectively at the effect of the servitude on the two properties. However, a requirement to allow a neighbouring owner to take access over one’s land may in some situations be quite burdensome, perhaps substantially so where it involves moving a herd of dairy cattle along the only vehicular route to a residential property. Insofar as it imposes shared rights of use, in effect an obligation to co-operate with neighbours, it may, depending on the extent of the obligation, create the potential for conflict. We accept that these are relevant considerations, although in this case it can also be said that the applicant not only purchased a property in a rural situation beside a dairy farm where one might expect to encounter cows on the road, but also purchased a property whose access was partly over the farmer’s stretch of the road where the farmer would be free to use the road for moving cattle if he chose to do so.

[51] It was clear to us that the servitude only started to create problems for the applicant in 2003/4, when she and her family started tarmaccing the road and replacing the grass verges with set cobbles. This certainly seems to have made it impossible for a car to pass through the herd, although whether it was that or a considerable increase in the respondent’s use of Gates ‘C’ and ‘D’, as the applicant alleged, which made matters difficult, is not for us to say. The applicant sought a finding that the respondent’s practice prior to 2003/4 was to use Gate ‘A’, and very occasionally Gate ‘C’. The respondent denied that, and pointed to the poaching problems with Gate ‘A’, but the time period in which such problems were encountered, and attempts made to remedy them, was not clear. Even on the applicant’s evidence, the respondent’s herd had been taken up the applicant’s road on at least some occasions, and it seemed to us that neither the applicant, who went out to work, nor her son who at that time attended school, were in a position to say how frequently.

[52] The question whether the applicant and her husband were aware of the existence of the servitude at the time was, to our minds, also not resolved by the evidence. A suggestion in the pleadings that the discussion in 1993, prior to purchase of the applicant’s property, of the need for a formal access right over the farmer’s stretch of the road, also revealed the existence of this servitude was put to the applicant in cross-examination, but neither the applicant nor the respondent was sufficiently able to recall what was said at the discussion, in which neither was principally involved. We accept that the applicant’s Land Certificate did not originally record the existence of the servitude, but we did not feel that her evidence, unvouched by any record of advice given, went so far as to establish that they were led to believe that there was no such access right. Although it has not been established that the applicant and her husband knew about this right of access, we find the suggestion that they did not slightly surprising in the circumstances. The position on the evidence is that access, to which the respondent clearly was entitled, had been exercised by taking the herd along the access road on at least some occasions, and the applicant made the servitude more burdensome by removing the grass verges. She may have been entitled to do so consistently with the right of access over “the road” (although, as Ms McLaughlin pointed out, the servitude involves at least a right to cross the verge in order to get into the field), but removing the grass did not help.

[53] There were conflicting accounts as to how long it took to move the herd. We have made a finding that it would normally take 10 to 15 minutes from gate ‘C’ to the milk parlour. This is based on ourselves walking the route, along with our Assessor, at the sort of slow pace which could be anticipated. Only some of that time involved the respondent’s exercise of the servitude. It would of course be longer if Gate ‘D’ were used, and there was also a question of first opening the gate, thus preventing any car from passing. Something in the region of 100 herd movements each summer could be anticipated. There was no suggestion of any problem from any other agricultural use of the road.

[54] In relation to the evidence of the two agricultural experts, we refer to the advice from our Assessor, Mr Smith. As we see it, the picture which emerges after all the evidence is that none of the experts finds Gate ‘D’ to be of any real utility to the farm. There is a difference in view in relation to Gate ‘C’. Following Mr Smith’s advice (which we can say accords entirely with our views), we agree with Mr Allen that Gate ‘C’ is of use to the farm, in accordance with reasonable agricultural practice.

[55] It does appear to us that our assessment of the use of this access right should relate to ‘reasonable’ and not ‘best’ agricultural practice. Ms Slee was critical of Mr Allen who, she submitted, was looking at best practice and not necessarily at what would be reasonable. We actually felt that that criticism could, if anything, be directed more appropriately at Mr Leggate. He seemed to us to be considering issues such as the most economic use of the farmers’ time. Mr Leggate changed his position in relation to use of Gate ‘C’. We also, again following the advice of Mr Smith, who questioned Mr Leggate on this matter, do not share Mr Leggate’s concern on welfare grounds about use of the farm road. So use of gate ‘C’ for movement of dairy cows during the grazing season, in accordance with the servitude right, is in our view in itself (i.e. before considering the extent of the burden imposed on the applicant) not unreasonable.

[56] How reasonable it is to use Gate ‘C’ to the exclusion of ‘A’ and ‘B’ is another question. In their joint report, the two experts identified, as ‘best’ practice, use of ‘A’ and ‘B’, with ‘C’ used only occasionally when poaching was a problem at the other gates. This brings us to the issue of poaching. Again following Mr Smith’s advice, we think firstly that there is more of a poaching problem at ‘A’ than at ‘C’, but secondly that this could be addressed by relatively extensive works at ‘A’, additional drainage (including around ‘B’, which will also help the position at ‘A’), and use of at least one other gate. We found the respondent’s evidence of attempts to cure the poaching problem somewhat vague, and we had the impression that there had not been much expenditure on it (which, from the respondent’s point of view, with access at ‘C’ available, might not be very surprising). So we have to consider, in the overall issue of reasonableness, whether it would be reasonable to expect the respondent to take such measures, at perhaps quite substantial expense, at ‘A’ and ‘B’ and what this means for the use of gate ‘C’.

[57] There was evidence about dung. We have not made any findings about that as it did not seem to us to be of any materiality: dung on or around the public road is not regarded as any sort of problem and we do not see why dung on a farm road should be either.

[58] Our assessment of the factors listed in Section 100 of the Act is as follows. It is often helpful to consider first the purpose of the title condition (factor (f)). This was obviously to provide access to fields which were part of the land conveyed in 1981. However, we think it goes slightly further than that. We do not accept Ms Slee’s submission that the purpose of an access right is simply to allow access to a particular place. Depending on the circumstances, the place at which access is obtained may be relevant. The Tribunal’s discussion of the position in the Wimpey case, at 11F and 11L, was related to the circumstances of that case. Even when the fields in the present case were bought, the respondent did not technically require that access, because the land adjoined an existing West Hills farm field through which access could be obtained easily enough by making an opening in the dyke. Nevertheless, an express right of access from the farm road, i.e. from anywhere along it, was created. Ms McLaughlin’s submission that there was a grazing management purpose may be going too far, but it may in our view be inferred that there was a purpose of access to this land, for agricultural purposes, from the road running beside it, that purpose continuing to have some relevance after the internal access from the other field was opened up.

[59] As to change of circumstances (factor (a)), the removal of the dykes, joining the three fields into one, is clearly a change of circumstances of some relevance, but on our view of the purpose this is not a factor of much weight. Of course it made access in another way physically available, but it did not render the purpose of this right obsolete.

[60] The applicant did not advance the 2003/04 works as a change of circumstances which assisted her case.

[61] In relation to the extent of benefit to the respondent (factor (b)), as we have indicated, access by Gate ‘D’, i.e. access between ‘C’ and ‘D’, is no longer relied on. Gate ‘C’, however, i.e. access up to point ‘C’, is. On the view which we take of poaching at ‘A’ and ‘B’, we do not accept that the benefit is as large as claimed by the respondent, but we do accept that ‘C’ is of benefit as an additional gate at a point less susceptible to poaching. There is also benefit in allowing the cows to enter in the upper half of the field rather than tramping over the lower part. It makes grazing management easier. Ability to use ‘C’ exclusively, as at present, relieves the respondent of the substantial effort and expenditure required to improve ‘A’ and ‘B’. It is to our mind considerably more advantageous than having a third gate at point ‘X’. It was argued that ability to use just one gate helps in maintaining a routine for the cows, but Mr Allen did not advance this and indeed referred to the risk of poaching if using just one gate and also agreed on Option 1 which involved using three gates.

[62] It was generally agreed that the benefit from this servitude was not crucial to the respondent’s business, and indeed that loss of it would not affect the valuation of the farm: the respondent would be able to continue dairy farming. There was also evidence, again not really contentious, that a purchaser would be unlikely to use the land for dairy farming. In our view, however, the applicant has not established in this case that the respondent’s well established use of his property as a dairy farm is objectively unreasonable, so the benefit of this access to a dairy farm is in our view clearly relevant.

[63] We should in our view, accepting Ms Slee’s submission, consider the extent of the burden (factor (c)) on the basis of assessment on the evidence of the burden reasonably to be anticipated, and not on the basis of the present agreement between the parties. It seems to us that that is in the nature of a temporary agreement. Further, it is merely a personal agreement. Although Section 90(5) might cater for this situation, we do not think it would be appropriate or realistic to import the terms of the present agreement as, in effect, burdens ancillary to exercise of the right. On the evidence, the servitude is presently exercised by moving the cows approximately 140 metres along the applicant’s road, around 100 times each grazing season, very approximately 16 times per month for half the year. The farmer might choose to use Gates ‘A’ and ‘B’ some of the time, but that is by no means certain while ‘C’ is available. He might also choose to use Gate ‘D’, adding another 100 metres walked by the cows. The applicant would of course face some inconvenience, regardless of this servitude, when gate ‘B’ is used (and indeed when encountering the herd on the public road), but even considering only the period during which the cows are on the applicant’s stretch of the farm road, that is a considerable increase in the inconvenience. This is of course in a farming area served by minor roads where some movement of livestock might be anticipated, but in our view, on an objective basis, this servitude impedes enjoyment of East Hills, the burdened property, to a substantial degree. There was evidence of the associated nuisance (in a non-legal sense) of dung. We would not attach much importance to this, as it is surely something which might be anticipated in a locality like this, but it does add slightly to the inconvenience which results from this servitude. The extent to which a right of access impedes enjoyment of the servient tenement obviously varies with circumstances. In this case, on the evidence, it restricts the ability of the applicant, her family and visitors, to come and go from her property at will on quite a number of days each year. Any purchaser from the applicant would be likely to experience similar inconvenience. This amounts in our view to a considerable inconvenience, with the potential for disagreement and disturbance of neighbourly relations.

[64] The other factor possibly relevant to the extent of the burden (or, if not, as ‘some other factor’, the heading under which Ms McLaughlin raised it) is the possibility of the applicant creating an alternative driveway alongside her stretch of the farm road, within her field on the east side, effectively making over the part of the farm road presently owned by the applicant to the respondent. This possibility has to be balanced against the possibility that terminating the respondent’s right involves an expectation as to works which he would require to carry out. However, it seems to us that it would represent a very considerable imposition on the applicant, who has incurred substantial expenditure on the road, bringing it up to a level far in excess of what is required for the movement of cows, but would on this hypothesis be faced with the expense of creating a new access road (to the standard which would be required for access to a dwellinghouse) in a field. There would also be a problem at the boundary, beside the site of the telecoms mast. We bear in mind that there could be a halfway house if the Tribunal were satisfied that it was reasonable to terminate the right beyond Gate ‘C’, i.e. the new road would not be required over the full distance.

[65] Neither side referred to the age of the condition (factor (e). The condition does not prevent a use for which there is planning or other consent (factor (g)). Although there is a suggestion that the applicant may be willing to pay compensation (factor (h)), this was not really formalised, so that it is by no means clear what level of compensation the applicant is willing to offer. This is in any event in most cases not a factor which adds much, because the statutory provisions in effect assume that the applicant will pay any compensation which is awarded (as otherwise the order for discharge or variation will not be made).

[66] Under factor (j), “any other factor which the Lands Tribunal consider to be material”, we think it of some relevance that the applicant exacerbated the problem by removing the grass verges. The ability to address the poaching problems at ‘A’ and ‘B’, and also the possibility of an alternative roadway within Field 1, is also material, although the impact of this on the issue of reasonableness depends on who pays for such measures.

[67] Weighing all these factors up, we are firstly satisfied that it is reasonable to discharge this servitude to the extent of the road beyond Gate ‘C’. Use of ‘D’ appears to us to be of such limited benefit to the respondent, compared with the very substantial inconvenience to the applicant when that gate is used for moving the cows, as to make this part of our decision clear.

[68] The right of access to Gate ‘C’ is more complicated. The servitude is in effect a property right which we have found, on the basis of reasonable agricultural practice, to be of benefit to the respondent. It is still capable of fulfilling its original purpose. Taking access from the lower part of Field 1, which has become physically possible since the condition was created, while of course relevant, is not under present circumstances a reasonable equivalent. Substantial works would be required to ensure viability of that alternative access. Removing the right without compensating the respondent in relation to the cost of those works does not appear to us reasonable, and indeed Ms Slee did not really argue that it would be.

[69] On the other hand, the servitude impedes the enjoyment of the applicant’s property, a residential dwellinghouse inaccessible any other way, to a considerable degree, with the potential (sadly realised in this case) for disagreement and conflict. Loss of the servitude would not be crucial for the respondent’s farm business. The statutory scheme of our jurisdiction allows us to consider varying or discharging title conditions, including servitudes, on the basis of compensation for any substantial loss or disadvantage suffered by the dominant proprietor as a consequence.

[70] We have considered the other possibilities canvassed. Variation to allow a new gate at point ‘X’ (almost, but not quite, the same as complete discharge) does not appear to us to meet the case. Nor does the possibility that the applicant could build herself another road. We have also borne in mind that, whatever the exact position about knowledge of the servitude, the applicant, with her late husband, bought her property subject to the servitude; and further, that the problem does appear to have been made worse by the changes she or they made to the road.

[71] Considering all the factors referred to, including the value to the respondent of the servitude, we have reached the conclusion that it is reasonable to discharge the servitude on the basis that the resultant loss or disadvantage to the respondent can be met by an appropriate award of compensation.

[72] Our decision cannot, however, take effect or be the subject of an order by the Tribunal until the respondent’s claim for compensation has been determined.

Compensation

[73] Parties are encouraged to try to reach agreement on the issue of compensation. If there is no agreement, the respondent will be required to submit an updated detailed claim. We shall allow a period of 8 weeks for this, with 3 weeks for the applicant to respond. Parties should indicate whether they agree to this issue being determined on the basis of their written submissions, which failing a further short hearing will be arranged as soon as possible. It is perhaps unfortunate that we are not at present in a position to assess the amount of compensation, although we have heard evidence bearing on it. However, the statutory provisions on compensation – Section 90(6), (7) and (9) – ensure that if the applicant does not wish to pay the amount awarded, the discharge will not be granted. The position in this case is complicated because there may be more than one possibility. It is possible – we say no more than that – that we may fix an amount of compensation, on the basis of discharge, i.e. removing access by Gate ‘C’ as well as Gate ‘D’, which the applicant may not wish to pay. She might, however, in that event wish to proceed with her application to the extent of partial discharge, i.e. removing the access right beyond ‘C’. It might be thought that in that event, compensation would be either nil or minimal, particularly when the requirement in Section 90(7)(a) for “substantial” loss or disadvantage is borne in mind, but if the respondent wishes to maintain an alternative claim on that basis, he should so indicate in his updated claim.

[74] While emphasising that we have still to hear submissions about the amount of compensation and of course have not reached any view on any of the issues involved in that, it may be helpful to parties to give some indication of the issues which appear to arise. So far as we can see, no question of compensation under Section 90(7)(b) can arise in this case. What is under consideration, therefore, in terms of Section 90(7)(a), appears to be what (if any) sum we will think it just to award to compensate for any substantial loss or disadvantage suffered by the respondent as owner of the benefited property in consequence of the discharge.

[75] While compensation under our jurisdiction is normally based on the effect of the discharge or variation in reducing the value of the benefited property, in this case there appears to be a real issue as to whether compensation should be based on the estimated costs of any or all of the works which have been referred to, viz. improvements in the ground surface around Gates ‘A’ and ‘B’, removal or replacement of Gate ‘A’, related drainage improvements to the area of ‘A’ and ‘B’ and the provision of an alternative fenced access route running towards the upper half of Field 1. There may be differing views as to the length of such an alternative route, and also about the exact extent and specifications of all these works. We refer to the Assessor’s views recorded above, and we can also indicate that we would be inclined towards accepting estimated costs on the basis of figures available in the Scottish Agricultural College farm management handbook. Issues as to betterment, and also the effect of undertaking sole responsibility for maintenance of the alternative route, have been raised. Mr Struthers also included items such as loss of agricultural land and a consequential expense connected with a security deed. All these matters remain open to submissions.

[76] We would also point out that Section 90(6) gives us a discretion as to whether to make an award of such sum as we may think “just”, so the issue may go slightly beyond simply quantifying loss and expense.

Final Comment: Option 2

[77] Now that we have decided that the servitude can be discharged on the basis that the resultant loss or disadvantage to the respondent can be met with compensation in the form of a monetary payment, parties may wish to consider again Option 2 identified by the experts in their joint report in 2009. As we understand it, this option also involved discharge of the servitude. It also proposed a roadway from ‘A’ to ‘C’ within Field 1. Whatever the correct approach to the issue of compensation in this application might be – we have of course not yet had parties’ submissions on that – Option 2 was apparently formulated as a solution, not involving use of Gate ‘C’, to the overall problem. (We make no comment on the precise dimensions or costs indicated in that joint report.) We understand the respondent’s reluctance to consider giving up any of his land within the field, but we simply do not consider the alternative of the applicant creating a new access road appropriate.


Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 15 June 2012

W Douglas Ballantyne – Deputy Clerk to the Tribunal