OPINION

David Stirling & Irene Allan v Guy Thorley & Others

Introduction and Summary

[1] A steading development takes access by a driveway leading from the public road. The driveway, with grass verges, together with an enlarged area presently used for turning outside the steading courtyard and a continuation of the drive round the back of the steading, is owned by the owners of the retained land, subject to servitude access rights. They now wish to build a new house on a site which includes part of the enlarged turning area outside the steading. They seek variation of the servitude rights by removing part of this area, on the basis that they would provide a new turning head and also a wider road at this point. The steading property owners oppose the application. The Tribunal heard oral evidence from a road design expert on the applicants’ behalf, but otherwise proceeded on the basis of the pleadings, documentary evidence and parties’ final written submissions, and inspected the site.

[2] We have not been satisfied in terms of the legislation that this application is reasonable, and have accordingly refused the application for the reasons explained below.

The Title Conditions

[3] Five dominant tenements, at Braidwood House and at 1, 3, 4 and 5 Braidwood Steading, Silverburn, Penicuik, the properties of the five respondents, derive title to the servitude rights in question from four Dispositions by Derek and Linda Saltman, recorded in the General Register of Sasines on various dates between 16 September 1994 and 6 June 1995 (one property having since been sub-divided). Each disposition conveyed inter alia “a servitude right of access for pedestrian and vehicular traffic” over the same area, an area coloured on annexed plans similar in relation to each property. Subject to minor variations in the individual deeds, the rights conveyed also included:-

“ … the rights of property, common mutual and sole, rights of access and whole other rights … contained in the Deed of Conditions … ” and:-

“(Two) free ish and entry therefrom and thereto over the said area of ground … ”

The dispositions further provided:-

“the said subjects hereby disponed are so disponed ALWAYS WITH AND UNDER so far as valid, subsisting and applicable to the subjects hereby disponed, the reservations, burdens, conditions, obligations, restrictions, declarations and others specified and contained in … (THIRD) the said Deed of Conditions.”

[4] Said area was also referred to and delineated in plans annexed to the Deed of Conditions by Derek and Linda Saltman recorded on 2 September 1994, in which the area was referred to as “‘the access road and surrounding area … (said access road and surrounding area being hereinafter referred to as “the access way”)” and included in the definition of “the Development”. Clause (Ninth) of the Deed of Conditions provided that the individual steading property owners (originally, four) were obliged to maintain the access way in good order and repair and to allow other owners, and the Superiors as proprietors of the surrounding land, free passage over “such roadway” for pedestrian and vehicular traffic. Parking on the “access way” was prohibited. Each owner was to bear a one-fifth share of the costs of maintenance, repair and renewal, the remaining one-fifth share to be borne by the land owner.

[5] The titles of Braidwood House and 1 Braidwood Steading are now land registered titles, with title plans showing the “access way” in identical terms. 4 Braidlaw Steading has recently been sold, prompting first registration which may be expected to be in identical terms.

[6] The applicants acquired title to the servient tenement, now known as Braidwood Farm, by Disposition by Linda Saltman and Derek Saltman recorded in the General Register of Sasines for the County of Midlothian on 28 July 2000.

Procedure

[7] The applicants David Stirling and Irene Allan, as proprietors of Braidwood Farm, Silverburn, Penicuik, applied under Section 90(1)(a)(i) of the Title Conditions (Scotland) Act 2003 (“the Act”) for variation of the title conditions, i.e. the servitude rights, so as to exclude a specified area. Five respondents, Mr and Mrs G. Thorley, 1 Braidwood Steading; Mr T. Salter and Ms. S. Pilgrim, 3 Braidwood Steading; Mr N. Pilgrim, 4 Braidwood Steading (who succeeded Mrs D. Day during the course of the proceedings), Mr and Mrs C. Martin, 5 Braidwood Steading; and Mr I. Walsh and Dr R. Belford, Braidwood House (all admittedly entitled to the benefit of the title conditions), maintained opposition to the application. The proprietors of Braidlaw Farm nearby also received intimation of the application, but did not submit any representations.

[8] As well as quite extensive pleadings, the parties lodged various documentary productions. The respondents, who were unrepresented, favoured disposal of the application without an oral hearing on the basis of the documentary productions and the Tribunal’s site inspection. The applicants, who were represented by Ms Slee, Solicitor, of Anderson Strathern, Edinburgh, wished a hearing of oral evidence, at least of a road design expert, David Chudziak of AECOM Limited, who had been involved on their behalf in connection with their application for planning consent. In these circumstances, and with parties’ agreement, an oral hearing of the evidence of Mr Chudziak, took place on 14 June 2012. He spoke, on the basis of detailed ‘swept path analyses’ in relation to various types of vehicle, to the proposed alternative layout of turning space. The documentary evidence for the respondents included inter alia written reports by Messrs Colin Buchanan, traffic experts appointed by them, and Mr Chudziak was cross-examined at the hearing. Thereafter, the parties lodged final written submissions and the Tribunal made its site inspection.

[9] During the course of the proceedings, the precise details of the application, in particular the extent of the area of the “access way” which the applicants wished excluded and the details of the proposed alternative arrangements, changed on more than one occasion, resulting in a proliferation of revised plans and reports by the respective experts. The area now proposed to be removed from the “access way” is shown on Drawing A(PL)013, dated May 2012, by Ericsson, Architects, subject however to removal, i.e. retention in the “access way”, of a small triangle shown on the east side of the area in question.

[10] Parties have apparently agreed to defer consideration of any possible claim for compensation until after our decision on the merits.

Authorities referred to:-

George Wimpey East Scotland Ltd v Fleming 2006 SLT (Lands Tr) 2
Ord v Mashford 2006 SLT (Lands Tr) 15
Jensen v Tyler LTS/TC/2007/35, 25.4.2008
Parkin v Kennedy LTS/TC/2009/35, 23.3.2010
ATD Developments Ltd v Weir and Hettrick LTS/TC/2010/03, 14.9.2010
Fyfe v Benson LTS/TC/2010/25, 26.7.2011
Trigstone Ltd v Mackenzie LTS/TC/2011/08, 16.2.2012

The Facts

[11] The basic facts may be summarised as follows.

[12] Location and Properties. Braidwood is located at Silverburn, some two miles south-west of Penicuik, Midlothian, in the foothills of the Pentland Hills, beside the A702 road to the north. The original farmhouse is now the fifth respondents’ property, Braidwood House. This and other parts of the farm estate have in relatively recent times been sold off. Braidwood House, which lies to the north side of a courtyard, and three plots for redevelopment of steading buildings around the courtyard, were sold in the 1990s, resulting in the current steading development, now consisting of five residential properties around the jointly owned courtyard. There is planning consent for conversion of another of the courtyard buildings (to be known as 2 Braidwood Steading), currently part of the fifth respondents’ property. Another farm property, Braidlaw Farm, lies a short distance to the south west of the steading development but apparently does not share the same access. The applicants own and reside in Braidwood Farm (originally known as New Braidwood Farm), a new dwellinghouse approximately a quarter of a mile to the east, also with a separate main access, from another public road, the A766 to the south. Both Braidlaw Farm and Braidwood Farm are, however, physically linked by farm tracks with the steading's access road. The applicants own some 95 hectares of the retained Braidwood land, including land immediately to the east of the turning area. The fifth respondents own and make some agricultural use of two fields to the north of the steading’s, between them and the A702. The first respondents, whose house is on the south-east corner of the steading, own and make use of a paddock and stable block to the south and south-east of the turning area.

[13] Access. The “access way” identified in the various title plans is in three sections. The driveway, running southwards for approximately 170 metres from the A702 road, consists of an attractive grassed area between the fifth respondents’ fields, with a narrow tree-lined tarmac drive running through, at varying widths of around 3 metres, to the steading area. A gate on the west side leads into a driveway in the front garden on the north side of Braidwood House. The drive then reaches gateposts, currently approximately 4 metres apart, and runs on through the large irregularly shaped turning area, where all but the very largest vehicles can turn round in forward gear (a “banjo turn”). On the title plans, this area is shown as having six sides, very approximately 30 metres square. On the ground, it forms a rough triangle to the east of the steading buildings. The narrow tarmac drive continues along the west side of the turning area, beside a rough surfaced area. The “access way” at this point also includes somewhat neglected and partially overgrown grass verges and banks on the east side and well kept grass verges on the west side. Entrance to the steading courtyard, to the west of the turning area, is through a gap of around 4 metres between two of the steading buildings. The courtyard, which is used for parking, is otherwise enclosed by the buildings which now make up the steading development. The third section of the “access way” is a continuation of the narrow tarmac drive, with grass verges, in a westerly direction behind the steading buildings, allowing vehicular access on that side also. The “access way” ends where the drive runs into a farm track running further westwards towards Braidlaw Farm. On the east side of the turning area, another farm track leads off towards Braidwood Farm. The fifth respondents have an additional right of access (with which this application is not concerned) along a short distance of this track, to one of their fields.

[14] The Applicants’ Development Proposal. The applicants propose to build another dwellinghouse on a site straddling the north-east side of the turning area and utilising approximately half of this section of the “access way”. The one and a half storey house would broadly follow the line and style of the southern buildings in the steading courtyard, with its gable wall facing the corresponding gable of the nearest existing house, 1 Braidwood Steading, at a distance of either 8 or 9 metres (there being a small discrepancy among the drawings produced). The front garden, to the south of the new house, would be bounded by a curved stone wall running from the end of the west gable wall, beside the access road and new turning head.

[15] Planning. Detailed planning consent, subject to conditions including the completion of the access arrangements, has been obtained, although the currently proposed access arrangements have changed from those shown in the drawings on which the consent is based. The consent is on the basis that the main vehicular access to the new house will be taken not from the “access way”, but rather from the A766 road to the south, i.e. by a continuation of the Braidwood House access, with upgrading of the present farm track on the east side. Appropriate restriction of private vehicles from using the A702 access side is a condition of the consent. A planning requirement at a rural location such as this is for a new house to be located as part of an existing group of houses, so that consent would be unlikely to be granted on a more isolated site elsewhere on the applicants’ land. Planning permission for the original steading development was granted in 1988, subject to 4 units (consent having been sought for 8), increased on appeal at that time to 5 units.

[16] Revised Access Arrangements. The current proposed revised access arrangements, reflecting changes made shortly before the hearing of Mr Chudziak’s evidence, are detailed on Drawing No SK011, Rev A, dated 22 May 2012. The turning area would be removed and replaced by a turning head, considered adequate for the type of larger vehicles which may be expected to require access to the steading development beyond the wall of the new house, i.e. at the south end, with the access road running from the present gateway towards the turning head. The continuation of the access road to the rear of the steading would run off from one “leg” of the turning head and the farm track towards Braidwood Farm, re-positioned a few metres to the south, would run off from the other leg. The access road in this area would be widened to 5.0 or 5.5 metres and apparently resurfaced in tarmacadam, reducing to the current approximately 3 metres shortly into the main drive leading to the road and into the continuation to the rear of the steading. In the immediate vicinity of the entrance to the steading courtyard, the current facility for larger vehicles to nose into the turning area and reverse back towards the courtyard entrance, round the corner of 1 Braidwood Steading, would be lost. Access to the garden of Braidwood House and the gardens of the houses to the rear of the steading would be unaffected. The restriction of private vehicles from using the A702 access in connection with access to the new house, would be effected by siting its main entrance, drive and garages on its east side and adding a new gate at the east end of the turning head. However, the current proposed arrangements also show an additional vehicle access off the “access way” to a ‘service bay’ to the rear of the new house, opposite the entrance to the steading courtyard, an alteration apparently not yet agreed with the planners.

[17] Boundary Dispute. There is a dispute, although no current legal proceedings, between the fifth respondents and the applicants, in relation to the boundary at the north side of the proposed new house site, outwith the area of the “access way”. If the boundary currently delineated on the fifth respondents’ registered title were altered in their favour, by including an additional approximately triangular area in the land owned by them, the applicants might not be able to comply with the current condition of their planning consent in relation to landscaping.

Parties’ Submissions

[18] The written submission of the applicants, of the respondents as a whole, and, additionally, of the fifth respondents, are at considerable length. We do not propose to reproduce the detail of these submissions, of which we have taken full account in reaching our decision. We summarise them briefly.

[19] The applicants’ position is that the purpose of the title conditions, viz. the servitude rights granted by the dispositions and not the Deed of Conditions, was simply to enable the respondents to access their properties from the public road, the respondents would continue to be able to do so if the application were granted and the access provision would not be materially or adversely affected. Particular reliance was to be placed on the evidence of Mr Chudziak, which should be preferred to any competing evidence not tested in oral evidence. It would still be possible for a full range of vehicles, in excess of what might usually be expected to attend residential properties, to access the respondents’ properties. The burden on the applicants in being unable to implement their proposals was greater than the benefit to the respondents in having the whole of the existing area within the access. There was no wider amenity purpose to the title conditions; alternatively, to the extent that there may be found to be such a purpose, it would be reasonable to grant the order sought in all the circumstances, because the proposed new dwelling would have little impact on the amenity of the respondents’ properties.

[20] In considering the purpose of the title conditions in issue, the applicants accepted that the provisions of the dispositions and the Deed of Conditions were unusual and potentially confusing, but the right of access was granted in the dispositions, not the Deed of Conditions, and as such was a stand-alone right of access rather than created as part of a development scheme. There were thus no development amenity considerations beyond the amenity of the right of access. Further, the Deed of Conditions contained no express protection of the amenity of the development or any prohibition of further building outside the individual plots. Reference was made to George Wimpey (East Scotland) v Fleming; Jensen v Tyler; Parkin v Kennedy; and ATD Developments v Weir and Hettrick.

[21] The applicants’ submission reviewed the factors listed in Section 100 of the Act. Questions of the accuracy or otherwise of the location of the boundary between the applicants’ and the fifth respondents’ properties were not for consideration in this process, although it was briefly submitted that the fifth respondents’ view on this was mistaken.

[22] The thrust of the submission on behalf of all five respondents was that there was more than just an access provision and there required to be an amenity purpose because the provisions in the Deed of Conditions were predicated by the conditions of the original planning permission for the steading development; and that granting the application would have an adverse material impact on their properties. The submission was critical of Mr Chudziak’s evidence in various respects, some detailed and technical. In general, it was said, he had not witnessed actual use of the turning area; he had not taken account of gradients or the susceptibility of the area to icing-over; he had not taken account of agricultural use, including that by the applicants who were entitled to use the “access way”; and there was no safety audit.Removal of the turning area inevitably increased safety issues. The respondents had shouldered the maintenance burden. Variation would be premature until the formal position of Midlothian Council on the revised proposed layout was known. The proposed house would have a material impact on the outlook from the first respondents’ property. Discussion of the plans with the respondents might have given the opportunity of discussing a mutually acceptable position for the new house. Certain assertions about the position of the planning authority were made. The respondents also reviewed the list of factors under Section 100. They did not believe that the loss of the area proposed was capable of being compensated for, but did outline some compensation proposals. The boundary dispute was a very important issue because of the planning consent conditions: the planning authority did have power to revoke permissions where significant conditions proved not to be implementable. The submission also referred to the position on expenses, without, however, making any specific motion.

[23] In addition to this submission on behalf of all the respondents, Dr Belford, one of the fifth respondents made a separate submission, some of which covered the same area but much of which related to the position at the boundary of the proposed building site, to the north of the turning area, between the applicants’ and the fifth respondents’ properties. It was submitted that the turning area functioned also as a safe passing place on the single track access road, and as a temporary off-loading bay for large vehicles unable to off-load in the courtyard. The entire area would become tight and awkward. It was noted that the fifth respondents’ property was a farmhouse and submitted that Mr Chudziak’s emphasis on the residential character of the development was misplaced. It would be unreasonable for the applicants to remove rights and thereby reduce the respondents’ quiet enjoyment of their property and by extension the values of the properties for their own financial gain. The amenity which the turning circle afforded was essential especially in harsh winter road conditions.

[24] The applicants submitted a detailed response, which we again only summarise, highlighting some particular points. (We have in fact accepted the applicants’ position on quite a number of matters, which we omit here, and also disregarded submissions for the respondents which we considered of no weight or not properly based on evidence). The Tribunal should find that large vehicles can access the courtyard and that this would remain the case if the development proceeded. Vehicles pass each other at the gate and adjacent to the steading building rather than in the turning area. The historical planning position did not have relevance to the title condition. There was no evidence that the applicants’ proposals were likely to lead to damage to property or accidents. The matter of alternative siting of the proposed house had not previously been raised or been the subject of evidence, and references to meetings with planning officials were not properly based on evidence. The fifth respondents’ property should be treated as residential.

Tribunal’s Consideration

[25] The approach which the Tribunal requires to take in an application of this sort is set out in Sections 98(a) and 100 of the Act. The applicants have to satisfy us, having regard to a list of factors set out in Section 100, that it is reasonable to grant the application. We have to consider the material available to us on the factors, which include “any other factor which the Lands Tribunal consider to be material”, and then decide the issue of reasonableness on an overall basis. Factor (f), the purpose of the title condition, is often a significant factor and in the present case, in which the structure of the title provisions is not as clear as it might be, that is a matter of dispute between the parties. Each case depends on its own circumstances, so that only very limited reliance can be based on previous decisions, although they may help to illustrate the correct approach. The Tribunal’s site inspection is often of considerable importance. Section 98(b), referred to in some of the original answers, sets out different tests which do not apply in a case such as the present.

[26] We have been careful, having regard to the procedure followed in this particular case, to confine ourselves to points properly made in evidence (including documentary evidence on which we have felt we could fairly rely) and also to put aside points first made in the closing written submissions.

[27] Cases involving access rights take a number of forms. Quite often, the application is simply to vary a defined access route, as where the servient proprietor wants to put up a building on the route, and the question may simply be whether the proposed variation provides a reasonably equivalent alternative. At the other extreme, a proposal to remove an access right altogether would usually require strong justification, although changes in circumstances may provide that. This case appears to us to have its own specialties, involving as it does an application to remove quite a large proportion of the land in question, but that land is clearly a much larger area than would be required for an access road as such.

[28] The issue concerns title conditions, not planning requirements. The existence of planning consent for the applicant’s proposed development is relevant, being specifically listed in Section 100. It goes to show the general reasonableness, from a public point of view, of the applicants’ development proposal, but this is very often of quite minor importance because the focus is on the reasonableness of the proposal in the light of the title condition, which may give benefited proprietors better and more assured rights than the planners’ requirements. This application is not in fact for permission to build a house, but for the removal of part of the “access way” over which the respondents have rights. It may not assist the applicants very much to establish that the access arrangements are accepted as adequate by the planning authority if they do not compare reasonably with the right conferred by the title conditions. In this case, the evidence is that the planners’ policy preference for turning circles which can be negotiated by all vehicles in forward gear may be relaxed where lack of space in a short cul-de-sac precludes the creation of a turning circle. That to some extent begs the question for us, because we have to decide whether, having regard to all the relevant factors, it is reasonable to remove the space.

[29] That said, our task necessarily includes comparison of the proposal with the existing provision under the title condition. This does not, however, mean that the applicants have to show that the alternative provision matches up precisely, merely that in a case in which there is no suggestion that an access right should be terminated the comparison is an important aspect of the test of reasonableness (primarily in the consideration of factor (b), the extent of the benefit).

[30] The basic position at this steading development is that the development required to take its vehicular access along a roadway leading from a busy ‘A’ road. The roadway with its verges was retained in the ownership of the original land owner. If the owners were simply granted access to their properties, it might be that all that was required was a route wide enough for a reasonable range of vehicles and the issue, if the land owner found it necessary to apply to the Tribunal to vary the route, might simply be whether the alternative proposed was a reasonable equivalent.

[31] However, it is necessary to consider matters more deeply. This is firstly because there is a requirement for larger vehicles to turn. There can be no question of reversing off or onto the main road and some vehicles cannot turn within the respondents’ properties, i.e. the private driveway of Braidwood House, the common courtyard and the driveways of the steading properties at the rear. This is of necessity not simply a right to get to or from the benefited property. Nor is the area in question properly referred to as a lay-by.

[32] Secondly, despite the land remaining in the ownership of the then landowners, the Deed of Conditions expressly identifies “the access road and surrounding area”, together described as the “access way”, as part of the development and, further, imposes shared maintenance burdens over both those areas. The plan clearly distinguishes the access road from the surrounding area by dotted lines but includes the surrounding area in the “access way”. This surrounding area is considerably larger than the access road itself, particularly at the location, close to the entrance to the courtyard, with which this application is concerned. There is no doubt that this physically allows large vehicles to turn in forward gear and provides additional space for manoeuvring outside the courtyard. Moreover, the Deed of Conditions prohibits parking in this area (although it seems clear that visitors in fact often do park there). Somewhat cryptically, in a passage relied on by the respondents, the Deed of Conditions also reserves to the landowner “all rights of access over the development which may be necessary to plant any trees or shrubs which may form part of the amenity scheme … ” That scheme is not further referred to in the deed. Nor is it identified in the productions in this case, although it can be seen that completion of a landscape scheme was a planning condition. Neither side has told us anything about the physical description of the larger area at the time of the steading development, although the respondents complain (and the applicants appear to accept) that, more recently, the applicants prevented the respondents from cultivating trees in the surrounding verges. A small indicator of the position at the time may be the depiction on some of the title plans of trees lining the driveway from the main road but none in the area with which this application is concerned.

[33] Yet, as the applicants point out, the Deed of Conditions does not itself confer the servitude rights, so that the references in the dispositions to disponing the rights in the Deed of Conditions does not add anything. Nor (whatever intention might be inferred within that deed) were the steading owners given any form of ownership rights over the “access way” with their properties.

[34] On the material available, and having regard to the physical circumstances, we do not agree with the applicants’ submission that this right, having been granted in the disposition and not the Deed of Conditions, is simply “a stand-alone right of access”, i.e. that the relevant purpose is simply to provide access and all they need to show is that access can be maintained. Our view of the purpose of these title conditions is that generous vehicular access, including turning and manoeuvring space for larger vehicles, was to be provided at this particular location. It appears to us both legitimate and appropriate, in this enquiry into the purpose of the title condition, to consider the context in which the right was granted, and that includes the provisions in the Deed of Conditions, particularly where the dispositions specifically referred to it. We accept the applicants’ submission that the allocation in the Deed of Conditions of maintenance obligations is not inconsistent with the possibility of variation of the extent of the right of access, but that provision is part of the context of the right of access.

[35] Whether there was a specific purpose of providing space for large vehicles to turn in forward gear is not so easy to decide on the evidence. The extent of the area, and of the surfaced area, apparently of some age, beyond the actual roadway, might suggest so. So far as we can see, there has always been such a turning area, although only the actual road has been tarmacced. The turning area is apparently demarcated by additional dotted lines on the fifth respondents’ Land Register plan although it was not so shown on any of the plans attached to the Deed of Conditions or, so far as produced to us, individual dispositions.

[36] What is clear is that that surfaced area, on which parking is prohibited, has been there for some time and does currently provide space to turn in forward gear. It also provides space outside the courtyard for service and delivery vehicles to load and unload without inconvenience to other vehicles. All this would, we think, be noticeable to prospective purchasers of the respondents’ properties and their consideration of the title position might reasonably lead them to the view that this was part of the title provisions. As one respondent put it in her answers, “my title deeds and the deed of conditions seemed to guarantee good rights of vehicular access to the property”.

[37] However, we cannot hold that there was a purpose of providing a landscaped amenity area as such at this particular location or any specific purpose of preventing development or other interference with the steading owners’ amenity. We accept the applicants’ submission on this. The respondents in our view make too much of the historical planning position, or some original intention to make the “access way” common property: it is one thing to look at what can properly be taken from the title plans of the “access way” and related provisions in the Deed of Conditions, but another to seek to import into the purpose of the titular access provisions amenity regulation which is simply not there. Accordingly, while we can understand the respondents’ (and in particular the first respondents’) resistance to the addition of a house on this site, we do not think that we should give any weight to that consideration which – as it seemed to us – was an important motive in the respondents’ opposition to the application. The respondents’ rights in issue in this case involve access, not the prevention of development. So we are primarily concerned, not with what the applicants propose to do on the land that they wish taken out of the “access way”, but with the reasonableness, in the circumstances of this case, of taking the area out and providing in its place the proposed new turning head and wider road within the remaining area.

[38] In case we are wrong on this view that the title condition has no wider amenity purpose, we should record that we agree with the applicants’ alternative contention that the proposed new house and walled garden, and remodelled turning area, would (leaving aside the effect on the facility for vehicles) not in fact detract from the amenity of this particular site. The design and dimensions of the house seem to us to fit the location quite well. We can appreciate the respondents’ frustrations at not having been allowed, for example, to grow trees around the present turning area, but even allowing for that we do not think that the house for which planning consent has been granted would, on an objective view, detract from the amenity of this location. Nor do we think that the arrangement of south-west facing windows on the proposed house, facing the side of the first respondents’ house, which already has a slightly public aspect, would represent any significant additional intrusion on their privacy.

[39] We turn to record the views which we have been able to reach on the comparison between the present access and that proposed. We approach this on the assumption that the proposed roadway will at the applicants’ expense be adequately and appropriately surfaced, which the applicants have not really spelled out but which can be dealt with at the stage of the Tribunal’s order if the application is granted.

[40] The only oral evidence is that of Mr Chudziak, speaking to his various swept path analyses of the proposed provision, as revised in response to criticism. We accept this evidence as technically accurate (and reject some criticism of the accuracy of his plotting), and it has been helpful in thinking about the manoeuvres of various vehicles. However, we agree with the respondents that it does not appear to allow for driver variation, the sloping terrain or the effect of adverse weather conditions. Nor does it include any analysis of swept paths under the present provision, so that this evidence does not address the comparison between the existing provision and that proposed, although Mr Chudziak did address that in his oral evidence. There is documentary evidence in the form of some adverse comment (although falling some way short of direct contradiction) by Colin Buchanan and Partners and assertions ranging from the applicants’ assertion that the proposed arrangements would in fact enhance the access provision to various contrary assertions by the respondents, who have also produced a note from the managing director of a freight transport company. There are some photographs. We have considered all the material and of course we looked for ourselves.

[41] Our jurisdiction calls for broad common-sense assessment, rather than detailed technical analysis, of matters of this kind. We have approached this on the basis of dividing vehicles into four broad categories, viz small, medium, large and very large, without attempting precise dividing lines. ‘Small’ would include cars and small vans which access the courtyard without difficulty. ‘Medium’ would include larger vans and lorries, typically around 8 metres, and cars pulling trailers. ‘Large’ would include larger delivery vans and lorries and refuse lorries, typically in the range of 10 to 12 metres. ‘Very large’ would include really large trucks and lorries including large articulated lorries up to about 16.5 metres.

[42] Mr Chudziak demonstrated to our satisfaction that large articulated lorries would have too much difficulty, even going forwards, at the junction with the main road, to be the subject of our reasonable consideration. We also noted the narrowness of the main driveway and its restriction by trees. In short, even under the existing arrangements, very large vehicles would anyway have such problems accessing the respondents’ properties that their difficulties need not form part of our consideration. Conversely, small vehicles would have no particular problem so do not require further thought. Generally, we are concerned with the types of medium and large service and delivery vehicles, including oil tankers, which may reasonably be expected to come to the steading properties, together with the type of vehicles for equestrian and small agricultural use which the properties with attached land may be expected to keep. The applicants’ suggestion that agricultural use of the fifth respondents’ property is excluded by the planning conditions for the residential development of the steading buildings does not appear to us to be supported by reference to the Deed of Conditions, the October 1988 planning consent or the actual situation.

[43] One feature of the proposal which we do note is that the roadway is to be at least 5 metres wide, which is considerably wider than the existing tarmacced road. To that extent, the proposal is an improvement on the present position in the area in question, although the main driveway and the road round the back of the properties would remain quite narrow.

[44] Broadly, we identify two main issues, firstly the turning provision and secondly the area in the vicinity of the common courtyard (access to the other driveways being unaffected by the applicants’ proposal).

[45] In our view, having looked at the location and on the basis of the roadway and turning head shown by the respondents being properly surfaced (and subject also to a drainage matter which we consider below), the new turning head will be entirely adequate for medium and large vehicles. The difference there is the difference between turning in forward gear and requiring to make a 3-point turn involving, of course, the use of reverse gear, i.e. 3 moves in place of one. That is a slight inconvenience, and perhaps more in some weather conditions. It seemed to us, however, that the respondents’ emphasis on this aspect was somewhat misplaced, because drivers of service or delivery vehicles must often make such 3-point turns, sometimes in much tighter spaces, and would not in our view be unduly concerned by having to do so at this location. Wintry weather conditions may cause problems even under the present layout. The applicants also pointed out that a vehicle servicing the rear of the steading properties, on the south side, may in fact already in effect do a 3-point turn. We would add that we did not consider that the first respondents’ stable property on the south side of the site would be adversely affected, apart from the inconvenience, for larger vehicles unable to turn within that stables area, of having to make a 3-point turn involving reversing. Nor did we feel that concerns about the children’s play area on the other side of the fence adjacent (apart from the verge) to the proposed turning head, were well-founded.

[46] We take a somewhat different view in relation to access to the courtyard itself. It has to be remembered that many larger vehicles would be unlikely to try to drive into the courtyard. There seems, for example, no reason to expect refuse vehicles to do so. Larger vehicles would be unlikely to be able to turn within the courtyard (where they would be likely to find several parked cars), so would have to reverse in or reverse out. However, some larger vehicles might be expected to do that. Others may wish to manoeuvre close to the courtyard entrance to facilitate deliveries or uplifts. It appears that oil tankers servicing the fifth respondents’ house may require at least to approach the courtyard entrance. We consider that such manoeuvres would be more difficult under the proposed arrangements, which constrict the area around the entrance to the courtyard. This area is on a slight upwards and also sideways slope. Mr Chudziak’s suggestion was that vehicles might drive in to the turning head, turn and drive back to the top of the main drive and then reverse round towards and perhaps into the narrow gap at the entrance to the courtyard. With ‘banjo’ turning, they could at present do the same but also have the option of driving in, turning left into the turning circle and then reversing back round the corner of No 1 Braidwood Steading and on towards the courtyard entrance, as illustrated by photographs of a large removal van. That possibility would be removed. Mr Chudziak suggested that that was a less sighted and therefore more dangerous manoeuvre than reversing from the entrance driveway. However, it is a turn of perhaps slightly less than 45 degrees, compared with a right angled turn reversing uphill on more sloping ground albeit not so close to the buildings and better sighted. We think there is here an appreciable disadvantage. Similar considerations apply to entering the courtyard forwards and reversing out. The manoeuvre suggested by Mr Chudziak would not, for most vehicles which may be expected to attempt it, have provided much problem on the fine afternoon that we visited, but it does have to be remembered that this is a location at some height where conditions may often be difficult in winter. Again, there are no doubt some problems with the existing facility in winter, but we think that these would be made slightly worse.

[47] We also consider that the present provision of space for larger vehicles to load or unload without inconvenience to passing car users is of benefit to the steading owners and would be affected by the applicants’ proposals. Further, the present use of the turning area as a safe passing place, particularly if more than one large vehicle is present, would be affected. It should not be forgotten that the respondents themselves are obliged to allow free passage to the applicant as owner of the surrounding land. Under the proposal, this would have to include the owner of the new house, which under the plans now put before us would have a service access in this vicinity. That would have to use some part of the “access way” and would itself add to the possible difficulties.

[48] The remaining manoeuvre is the right turn out of the courtyard. Mr Chudziak’s swept path analyses of this confirm our view that this would become difficult or impossible for many large vehicles, which would therefore have to proceed forwards to the driveway and then reverse down and turn at the turning head. However, even with the present facility, relatively few larger vehicles would be in this position.

[49] The proposal does not make access impossible for the type of larger vehicle which may be expected to require access to this development, and does apparently satisfy the planners’ requirements. However, in comparison with the respondents’ existing rights, it does add a new element of inconvenience to the access to the courtyard. The widening of the roadway, although helping with some of the identified problems, would not in our view solve them.

[50] In short, the access provision would in our view be adversely affected, although this is a matter of degree and, as the applicants submit, it is only one factor in our overall consideration.

We turn to our consideration, on the material available and on the basis of our site inspection, of the factors listed in Section 100.

[51] The applicants do not in their final submission claim that there is any material change of circumstances (factor (a)) since the title condition was created. We agree. They cannot look to any change of circumstances as making it reasonable to vary this title condition. The respondents argue that some of them have an increased access requirement as a result of acquisitions of surrounding land. They do not specify the extent to which this refers to land acquired since the creation of the condition. We do not give any weight to this because we are concerned with the rights conferred on them along with ownership of the properties conveyed. In any event, the fifth respondents’ predecessors appear to have acquired the fields along with Braidwood House and we regard some equine movement and small agricultural use as consistent with that ownership, so that to that extent there is in fact no change.

[52] This right of access clearly confers substantial benefit on the respondents’ property (factor (b)). It is a generous access provision including turning space and verges, useful in this particular case for access by larger service and delivery vehicles, as discussed above in relation to the applicants’ proposals. We have compared the existing provision with that proposed. In summary, we do consider that the proposal does curtail the access provision, partly by increasing the necessity for larger vehicles to manoeuvre including reversing but mainly by constricting the space in the vicinity of the entrance to the courtyard, rendering one way of approaching the entrance to the courtyard impossible for larger vehicles and causing inconvenience to the respondents. We also think that the proposal would add slightly to difficulties in some winter conditions. However, that location would at present cause difficulty to some vehicles. So there is some benefit, but it should not be exaggerated. For the reasons given, we do not think that the impact, if any, on amenity and views should carry any weight in this case.

[53] This servitude right clearly impedes enjoyment of the burdened property (factor (c)), by preventing the applicants from building on their land a house for which they have planning consent. The respondents have pointed out that the applicants’ revised layout proposal has not apparently yet been approved, but we see no reason to think that, at least in relation to the small reduction in the extent of land taken out of the “access way”, this will cause any planning problem. The reason for addition of a service area at the rear of the property, apparently not part of the consented proposal, has not been explained, but we assume that this could be removed if the planners do not approve. The fact that the applicants already own and occupy a house and substantial land around is in itself irrelevant.

[54] There is, however, a question whether the house requires to be built at this particular location. If they would be allowed to build a house without encroaching on this area, why are they disadvantaged by the servitude? The applicants’ answer is that at such a rural location, planning does not permit isolated new house building but does allow additions to existing house groups. We have no difficulty in accepting this in general. What we have found more difficult is the question whether it requires to be located at this precise site. Contrary to the applicants’ closing submission, this was in our view adequately raised in the pleadings and indeed answered by an indication that the applicants had considered alternative possible layouts but none “which used none of the lay-by area” had been found viable. Assuming that to be correct, it does not explain why so much of the “access way” is required. The applicants have produced planners’ worksheets in relation to both the outline and the full applications, and also to a ‘competing’ application made in effect in the respondents’ interest in an attempt to establish a more distant site. These certainly support the general position but do not address the precise location now proposed (the matter of location having been addressed by the planners at the outline stage, when the plans showed the house gable in a different position several metres further to the east). It might be thought that more of the area in the vicinity of the courtyard entrance could have been left, with the gable and front garden walls not encroaching, or at least encroaching far less, on the surfaced turning area. The views expressed in the three planning worksheets seem to us consistent with such a possibility. We do not find any evidence of it having been considered either with the planners or with the architects, or indeed with the respondents. It is for the applicants to persuade us that their proposal is reasonable and while their general position on this factor is clear we are left with some difficulty on this particular point.

[55] Factor (d) has no application in this case.

[56] As we understand their submission, the applicants place no reliance on factor (e), the age of the title condition. The respondents, however, put “significant weight” on it. It does seem to us that this is quite a recent condition and there is nothing to suggest that the passage of time supports the reasonableness of interfering with it. We agree with the respondents that it adds some weight to their position.

[57] We have considered factor (f), the purpose of the title condition, above.

[58] The applicants rely on their planning consent (factor (g)), while recognising that it is only one factor to be considered. The respondents refer to their objections to the planning application and their complaints about the procedure. They also suggest that because there are outstanding conditions and the plan has undergone some change, it cannot be taken as established that there is consent. We are, however, clear that there is consent in principle and, with no legal challenge apparently having been launched, no reason to doubt that there is consent for a house in the position shown in the planning drawings produced to us. The respondents submit that the planners did not take the specific issue of access into the courtyard, as opposed to provision of a turning area, into account. There is no evidence of that, but in any event, since this case is all about access, this is part of the issue for our consideration in the context of the title condition and, as we indicated above, adequacy for planning purposes may be of limited relevance in our jurisdiction. The applicants can derive some limited support from this factor.

[59] We regard factor (g), willingness to pay compensation, as neutral in this case. If any compensation is claimed, and if any is awarded, the applicants would only achieve the order which they seek by satisfying the award. We would add, in relation to certain “proposals” mentioned in the respondents’ submission, that the Tribunal would require to approach the issue of compensation in accordance with the provisions of Section 90(6) and (7) of the Act, Section 90(7)(b) apparently having no application in this case.

[60] Factor (i) has no application in this case.

[61] A number of other matters may be considered as possibly material (factor (j)).

(i) There may possibly be difficulties in the vicinity of the northern boundary of the proposed house site, as result of a boundary dispute between the applicants and the fifth respondents, landscaping conditions in the planning consent and the respondents’ water and drainage rights, or a combination of these. These do not basically affect the reasonableness of this application, except to the extent that they might bear on the extent of the impediment on the applicants by affecting their ability to proceed with their proposal (factor (c)). On the information available, and on the basis of our own general understanding of such matters, we are not persuaded that any of these matters cause any real difficulty to the applicants’ development. The application does not relate to the respondents’ water and drainage rights, which would therefore be unaffected by any order which the Tribunal might make. We do not consider these matters material to this application and make no findings on them. We offer no view on the boundary dispute. For the avoidance of doubt, any use of plans on which the northern boundary of the applicants’ land may be shown does not reflect any view on the correct position of that boundary.

(ii) There was some suggestion that alteration of the access position might prejudice the fifth respondents’ ability to proceed with the further residential conversion for which they have planning consent. There does not appear to be any evidence which would enable us to reach that view.

(iii) The fifth respondents also referred to the effect on access to their field to the north of the turning area. However, there is at present no direct physical access from the turning area. If there is any effect on such access further along to the east, the present application has no bearing on that.

(iv) We note a lack of specification of the surfacing material on the re-positioned drive way and turning head. We also felt at our inspection that we should be told more about the road drainage arrangements. However, each of these matters could receive further consideration prior to any variation order being made, so they do not affect our consideration of the merits.

[62] Drawing all these considerations together, at the end of the day we consider that the extent of the adverse effect on traffic arrangements affecting the respondents’ properties, together with the extent of the burden on the applicants, are the most important matters to consider, in the context of the other relevant factors, particularly the purpose of the title conditions. The extent of benefit has to be assessed in the light of our view as to the importance of the access arrangements to the respondents’ properties, being arrangements entered into quite recently when the steading development was established and these properties sold, albeit not by the present applicants. As we have said, we accept that access can be maintained under the applicants’ proposals and that these comply with minimum planning requirements, but we are not persuaded that they take sufficient account of the respondents’ reasonable interests, having regard to their titles. Further, while it would be a considerable interference with the applicants’ enjoyment of their property if they could not build at all in this area, we are not persuaded that they would be unable to make use of their land in the way they wish if they are unable to proceed with this proposal as it stands. We have come to the conclusion in all the circumstances that the degree of interference with the respondents’ access rights is unreasonable and that the application therefore falls to be refused.

[63] This is not, as it seems to us, a situation in which we might recognise the adverse effect but consider that it could reasonably be met by an award of compensation. We consider that the extent of this access provision is a significant feature of the respondents’ properties at a development where circumstances have basically not changed.

[64] In reaching this view, we stress that in principle, there is in our view, in the context of these title conditions, nothing in principle wrong with a proposal, which has planning permission, to build a house at this site. Rather, it is the extent of interference with the arrangements secured by the title conditions which has led us to this conclusion.

[65] It follows that we cannot rule out the possibility of some modification of the applicants’ proposal, involving a lesser degree of interference with the respondents’ rights under their titles, being considered reasonable. That possibility might arise by moving the footprint of the house, or the position of the westmost gable, slightly to the east and taking less land opposite the entrance to the courtyard. The entire rear wall of the first respondents’ property abuts the entrance to the courtyard. If, in effect, another house is being added to the development as part of the group of houses, it is not easy to see why some of the land around the new house should not similarly be used as part of the access provision. So far as we can see, there has been a lack of sensible dialogue between the parties, responsibility for which we are in no position to assess. If the applicants wish to proceed with this development, perhaps now they could start a dialogue which could prevent further expensive as well as stressful future proceedings.

Decision

[66] For these reasons, we refuse this application. In that situation, we do not require to consider the exact form which an order for variation would take. In this connection, we would mention, merely to draw attention to this technical consideration, that we have slight difficulty with the idea that no variation of the Deed of Conditions would be required, as that would seem to leave part of the land occupied by the new house within the “access way” and within the area of “the Development” in terms of that deed.

[67] Any issue as to expenses can be disposed of, in accordance with our usual procedure, on the basis of written submissions. The applicants did indicate that they sought certification of Mr Chudziak as an expert witness and would not oppose such certification of the respondents’ expert witness. Subject to any submissions on this, such certification of both would appear appropriate.


Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 12 October 2012

Neil M Tainsh – Clerk to the Tribunal