OPINION

Hossack v Robertson

Introduction and Summary

[1] This is an opposed application under Section 90(1)(a)(i) of the Title Conditions (Scotland) Act 2003 (“the Act”) to vary the route of a servitude right of access across the applicants’ garden ground on which they, Donald and Fiona Hossack, wish to build a conservatory. The present servitude, the route of which was determined following an earlier Lands Tribunal decision, essentially runs across the garden and close to the rear of the applicants’ house from the garden of the respondent’s house to his yard to the west.

[2] Having considered the relevant factors referred to by the parties, the Tribunal is satisfied that it is reasonable to grant this application on the basis that the new footpath is sufficiently wide at the corners to enable a wheelie bin or wheelbarrow to be manoeuvred along the new route.

The Title Condition

[3] In 1944 the proprietor of 3 adjoining properties sold the middle one (6 West Shore Street, Ullapool, “the subjects” ) and conveyed it by a disposition (recorded on 10 October 1944) which reserved an access right in favour of herself and her successors as proprietors of the property to the east now, owned by the respondent.

[4] Following the Tribunal hearing and site visit in 1999 the Tribunal varied the then land obligation (under Section 1 of the Conveyancing and Feudal Reform (Scotland ) Act 1970) so that it would read as follows:- “and I hereby reserve to myself and my successors as proprietors of the subjects on the east of those hereby disponed right of access to the subjects on the east through the said subjects hereby disponed between the back of the house and the chalet building erected on the said subjects along a path one metre wide bounded on the north side by said chalet and running from the southeast corner of the chalet as close as may be to the existing fence until it turns at right angles to meet the north west corner of the rear extension of the said subjects on the east known as and forming Bayview, 5 West Shore Street Ullapool.”

The Issue

[5] The applicants wish to build a conservatory to the rear of their house and for which planning permission and building warrant have been received. This cannot proceed unless the route of the pedestrian access, determined previously by the Tribunal, is changed. The applicants accordingly seek to vary the route taking the path around the perimeter of their rear garden ground.

Procedure

[6] The parties agreed, in terms of Rule 26 of the Lands Tribunal for Scotland Rules 2003, that the matter could be dealt with by way of written submissions and a site inspection at which both parties were present. Also in attendance was the respondent’s solicitor, Mr Kenneth MacLeod of MacLeods, solicitors, Inverness

The Facts

[7] 5 and 6 West Shore Road are semi detached dwellings built off the heel of the pavement. They appear to have originally been part of a terrace of Victorian, two storey houses but there are now gap sites to the east and west. The respondent owns 5 West Shore Street and a yard to the west of the applicants’ house. The present footpath enables the respondent and his family to access his yard by way of a fenced footpath through the applicants’ garden, rather than using the pavement, and it enables him to access the rear of his house and garden for the

delivery of bulky goods and to manoeuvre his wheelie bin to and from the pavement. Double gates give access to the respondent’s yard from the pavement of West Shore Street.

The Proposal

[8] A sketch plan of the proposed route had been lodged with the application. The start of the footpath from the respondent’s property would be unchanged but the proposed route would run north close to and parallel with the mutual boundary then turning west through 90 degrees, running parallel with the rear boundary until it reaches the stone wall between the yard and the applicants’ garden. The path would again turn through 90 degrees south to the end of the existing stone wall. The applicants propose to build a new stone wall on the line of the present timber boundary fence with the respondent’s yard. At present, much of the applicants’ rear garden is monoblocked, has low stepped terraces, raised borders and includes a barbeque. The applicants propose to remove these features and create a one metre wide (as existing) sloped pathway suitable to take a wheelie bin. The proposed route within the garden is about 2m longer than the present route.

[9] The existing gate in the boundary with the yard is about 10m from the pavement but the new opening into the yard will be some 18m from the pavement. Overall the additional distance for the respondent to walk to the pavement is about 10m. In order to screen the new path from their house and proposed conservatory, the applicants propose to bound it with a timber fence approximately 1.8 m high, to a design similar to that defining the existing access route.

Submissions

[10] The applicants’ submissions, under reference to the factors listed in Section 100 of the Act, and on the basis of the evidence, are summarised as follows:-

(a) Change of circumstances. There has been no material change to the surroundings since the title condition was first varied; however, the present pathway is being used by the respondent and his family more extensively than previously and this is impacting on the privacy of the applicants. They had obtained planning consent to remove the existing chalet and build a conservatory extension to the rear of their property.

(b) Extent of benefit - it is accepted that the footpath is of benefit to the respondent and accepted that the proposed route is longer than the existing route. It is also pointed out that the respondent has alternative access to his yard from West Shore Street.

(c) Extent of burden - the present title condition defining the route of the pathway immediately to the rear of the house prevents the conservatory being built.

(e)Length of time since the condition was created - the original 1944 title condition was varied following a Lands Tribunal hearing, site inspection and decision in 1999.

(f) The purpose of the title condition is accepted as being to allow the respondent access to his rear garden from his yard and to give access to the public highway from the back of his house.

(g) the local authority has granted planning consent and a building warrant for the erection of a conservatory immediately to the rear of the applicants’ property.

(j) any other factor - the proposed route is to the back of the applicants’ garden and the potential for friction between neighbours is materially reduced particularly when fenced screening is erected.

[11] Mr MacLeod’s submissions of behalf of the respondent were understandably brief. He considered that the re-routing of the access path would considerably inconvenience the respondent who was elderly and in poor health. The proposal would add considerably to the distance the respondent would have to travel when moving his dustbin or other bulky items. In terms of factor (j) he noted that the respondent would shortly be carrying out internal alterations to his kitchen. He also observed that disputes taken to the Tribunal were extremely stressful to the respondent

[12] Mr MacLeod also entered a plea-in –law to the effect that the doctrine of res judicata applied, since the Tribunal had already varied the access in 1999 and were therefore barred from considering the matter again.

Tribunal’s Consideration

[13] We have as a preliminary issue considered the question of res judicata. We do not consider the doctrine applies as regards the issue raised in this case. Whilst there was an earlier application before the Tribunal between the same parties which defined (through variation) the extent of the access to the rear of the applicants’ house, this is clearly a new application under different circumstances and under a different statute, which must be considered on its own merits. The fact that there has been an earlier decision by the Tribunal some 13 years previously might be a relevant factor for consideration under factors (e) and (j).

[14] For this application to succeed, we require to be satisfied that it is reasonable. We have to have regard to the statutory list of factors in so far as these have application to the circumstances. What we have to do therefore is to consider the effect of the various factors and weigh the issue of reasonableness up as a whole.

[15] The breakdown of relationships between the parties is unfortunate. It is not our function to apportion blame nor can we have regard to the personal circumstances of the parties particularly in relation to matters such as health. We should look objectively at the relative positions of the affected properties in relation to the servitude, the route of which the applicants wish to have varied.

[16] Looking at matters this way we have a clear impression that the present access impedes the construction of a conservatory which is a reasonable use of garden ground and that the proposed new route, whilst longer, does not materially prejudice the respondent.

[17] Turning specifically to the statutory factors, we usually look first at the purpose of the title condition when it was created (factor (f)). This was clearly to provide access between No. 5 and the yard to the west, also owned by the respondent, and from which there is access to the pavement of the public road. That purpose can plainly still be fulfilled by the (albeit slightly longer) proposed route.

[18] We do not consider there has been any material change of circumstances (factor (a)) in relation to the benefited property since the title condition was defined in 1999.

[19] As far as the benefit to the benefited proprietor is concerned there is no doubt that the access is of value to the respondent. That is not disputed. We accept that the proposal to site the access at the rear of the garden away from the rear of the house is a sensible and practical solution provided the new route allows the access to be used by someone with a wheelbarrow or wheelie bin. There will be some inconvenience to the respondent who will have to take a slightly longer route to the yard and the public highway but essentially the same right of access will be preserved.

[20] As far as the extent of the burden on the burdened proprietors is concerned we think this a very considerable. Building a conservatory, with the benefit of local authority consents, in one’s garden is a reasonable use of that land. Without the access route being re-positioned the construction of the conservatory cannot progress. That is a very considerable burden on the applicants and undoubtedly impedes their enjoyment of their property. Weighing up, as a matter of balancing the burden and the benefit, we conclude that the burden on the applicants of having to retain the existing route outweighs the benefit in such retention for the respondent, particularly when we are not in this instance considering discharge but a reasonable variation. Accordingly, factors (b) and (c) favour the applicants.

[21] Factor (g) – whether the condition prevents a use for which there is planning consent – plainly applies in this case since a planning consent was granted for the conservatory extension by The Highland Council on 17 November 2011. However, this particular factor is one which simply sits in the overall balance of our consideration and is not by itself conclusive.

[22] The respondent wished us to take into account, as a material factor (factor (j)), the fact that the question of access had been considered by the Tribunal in 1999. However, that application primarily dealt with defining the precise route of the access and establishing the width of the footpath. This application is for a change in the positioning of that route to enable the applicants to build a conservatory following the receipt of planning approval.

[23] The sketch proposals submitted with the application show a path one metre wide similar to the width of the current path. The existing path has, however, generally gradual bends where there are changes in direction. In contrast the proposed route has tight right-angled bends. At these right-angled corners there is insufficient width to permit easy access by a person pushing a laden wheel barrow. Accordingly, at such corners the design of the bend would require be modified in a way that ensures easy access between the respondent’s properties. We consider the sketch plan reasonably clear but we require the applicants to prepare and lodge a more detailed scale plan taking account of the above comments (i.e. illustrating wider cornering). In order that the plan, which will be annexed to our final Order, is suitable for registration, it would be appropriate to have it professionally prepared. A copy should be sent to the respondent’s solicitor.

[24] In summary, this application for variation of the servitude right of access will be granted and a final Order will be issued when a fresh more detailed plan outlining the new route is lodged. Accordingly, the cause is continued for a period of six weeks.


Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 29 June 2012

Neil M Tainsh – Clerk to the Tribunal