OPINION

Michael Stephenson & Another v Graham Thomas & Another

Introduction and Summary

[1] This is an opposed application under Section 90(1)(a)(i) of the Title Conditions (Scotland) Act 2003 (“the Act”) for discharge of a title condition or purported title condition in the form of a servitude right of access (“the access right”). In 1996, the applicants acquired their property. It was then a field. They have built two houses on it. A small area at one corner is the subject of the access right, which was created in about 1990. This leads from the public road through the applicants’ property over a defined route into the adjoining property, a house which the respondents acquired in 2003. The boundary is the middle of a burn, so that exercise of the access right would require a bridge. There was a bridge, but this has been in disrepair and unusable. The right has not been exercised for many years now. Since about 1992 the respondents’ property has had another vehicular access from the road, shared with the neighbouring property on the other side. The respondents, however, claim to be entitled to resume exercise of the access right and have expressed a wish to do so because they say they are concerned about the safety of their present access. The applicants contend that the access right has been extinguished by either prescription or abandonment. Sheriff court proceedings raising these issues have been sisted pending the outcome of this application under the Tribunal’s jurisdiction to discharge the title condition or purported title condition. The issue for the Tribunal is not the validity of the access right but the reasonableness of this application for discharge, having regard to the factors listed in Section 100 of the Act.

[2] The Tribunal has decided, in the particular circumstances of this case, for the reasons given below, to refuse this application as we are not satisfied that it is reasonable at present to discharge this servitude. We have, however, added comments to the effect that if the respondents do not take the necessary steps to progress their court action and advance their proposal to exercise this access right within a reasonable timescale, the result of a further application might be expected to be different.

The Title Condition

[3] A Disposition of 0.373 Ha of land, now the applicants’ property, at St Catherines, Cairndow, Argyll (“the Holly Robin site”), by Allan Peter Munro in favour of Peak Ridge Scottish Developments Limited dated 11 September and recorded in the Division of the General Register of Sasines for Argyll on 27 November 1990 (“the 1990 disposition”) provided inter alia:-

“And Also With and Under the following additional burden namely, there is reserved in favour of the proprietors of the adjoining ground lying to the North East of the subjects an unrestricted right of access over the area shown hatched black and marked “right of access “ on the plan annexed and executed as relative hereto, subject to maintenance according to user … ”

[4] The respondents hold their property (“the Kilkatrine site”) under a registered title, ARG4084, which makes no mention of the title condition, although it was expressly conferred in a 1989 Disposition by Allan Peter Munro in favour of David Cannings and Mrs Gwyneth Cannings, in the following terms:-

“ … a heritable and irredeemable servitude right of access for pedestrian and vehicular traffic between the said public road and the subjects hereby disponed over the adjacent area of ground remaining in my ownership to the south west of the said subjects hereby disponed, declaring however that my said disponees and their foresaids shall be solely responsible for the cost of constructing and maintaining any access roadway and ancillary works in connection with this right … ”

[5] Both parties approached the issue on the basis of the provision in the 1990 disposition. It was accepted on the applicants’ behalf that omission of the title condition from the respondents’ registered title would not of itself affect the possible validity of the right. The Tribunal was not informed whether the two subsequent conveyances of the Kilkatrine site repeated or omitted the reference to the servitude.

Procedure

[6] Michael John Stephenson and Geraldine Shirley Chamberlain as proprietors of Holly Robin Lodge, St Catherines, Cairndow, Argyll (“the applicants”), applied for discharge of the access right. Graham and Josephine Thomas, as proprietors of Kilkatrine (formerly Burnside), St Catherines (“the respondents”), opposed the application and, in the alternative, sought compensation. An oral hearing on the merits and compensation took place in Greenock Sheriff Court on 1 and 2 October 2012. The applicants were represented by Mr Macdonald, solicitor, of Messrs Stewart and Bennett, Dunoon, who called the applicant Mr Stephenson and Lachie Beattie, who had carried out certain works on the applicants’ behalf at the Holly Robin site during the 1990s, as witnesses. The respondents were represented by Mr Stevenson, Solicitor, of Messrs Claphams, Giffnock, who called each of the respondents, Mr and Mrs Thomas, and Robert Somerville, owner of “The Pines”, the property which presently shares a vehicular access from the A815 road with the respondents’ property. Parties also lodged documentary productions and a Joint Minute agreeing the status of some of the productions and also certain facts. A ‘Structural Report’ in relation to the state of the bridge across the burn in March 2012, by consulting civil engineers, A.T.K. Partnership, Greenock, was not spoken to by its author and not the subject of agreement, although referred to in evidence. Both sides lodged late, at the commencement of the hearing, some further productions including letters from others (and one from the second applicant, Ms Chamberlain), as to the accuracy of which there was no agreement and which the Tribunal have treated with caution. During the course of the hearing, before final oral submissions, the Tribunal inspected the site, unaccompanied.

Authorities referred to:-

Melville v Crabbe, 19.1.2009, LTS/TC/2007/42
Gibb v Kerr, 28.5.2009, LTS/TC/2008/54
Colecliffe v Thomson, 2010 SLT (Lands Tr) 15
G v A, 26.11.2009, LTS/TC/2009/13
Graham v Lee, 18.6.2009, LTS/TC/2008/41

The Facts

[7] The Tribunal has made the following findings of fact on the basis of the oral and documentary evidence, the Joint Minute and the Tribunal’s site inspection.

[8] The locality of St Catherines, on the east side of Loch Fyne, is situated on the A815 road which forms the main road link between Dunoon and Cowal and the ‘Rest and Be Thankful’ road to Arrochar and Glasgow. Many of the houses on both sides of the road take access directly from the road, which is a good single carriageway rural main road with a recently introduced 40mph. speed limit through the village. The road is moderately busy and is used by many substantial heavy vehicles. It is not unusual for vehicles, including heavily laden lorries, to drive through the village at speeds at least slightly in excess of 40 m.p.h.

[9] Both sites are on the south-east, landward side of the road, which also has a pavement on that side. They had been in the ownership of a Mr Munro. In around 1982, Mr Munro had allowed a Mr Moffat to live in the Kilkatrine site, which was then a field. There was no direct access from the road to that field. Mr Moffat was allowed to use a nearby gate into the adjoining field (now the Holly Robin site) and a small bridge (“the access bridge”) some 4 metres up a burn which separates the sites, to obtain access. He pulled a caravan across the bridge, using a transit van. Subsequently, Mr Munro put Mr Moffat and his caravan off the field. Then in 1989 Mr Munro sold the Kilkatrine site, with the access right as narrated above, to a Mr and Mrs Cannings, who built the house (then called Burnside, now Kilkatrine). In 1990, after that house had been built, Mr Munro sold the Holly Robin site to Peak Ridge Developments Ltd, subject to the access right, which was then slightly differently described as narrated above. The boundary is the middle line of the burn. The 1990 disposition plan showed a defined access route approximately 2.5 metres wide and around 14 metres long, starting, at the access bridge, parallel with the road and curving round to reach the road at right angles, being at its south-west most point some 11.15 metres along that boundary, i.e. 11.15 metres from the middle of the burn underneath the road bridge. The access right affects a rectangular area of approximately 80 square metres, around 3% of the applicants’ property. The land forming the access route was apparently unsurfaced and may not have been delineated on the ground.

[10] Mr Cannings built the house now occupied by the respondents on the Kilkatrine site in about 1989/90. In doing so, he appears to have exercised the access right on at least some occasions, using that route to transport materials onto the site. In 1990, Mr Sommerville purchased the house, The Pines, on the adjoining site on the other, north-east side. This is a substantial older villa. Its access was then somewhat further along the road in a north-easterly direction. Mr Sommerville considered that that access was unsuitable. Mr Cannings agreed to form a new driveway for Mr Sommerville on the south-west side of The Pines, emerging beside the boundary with the Kilkatrine site. A planning application was submitted in relation to that new access. After the authority engineer raised issues about lowering boundary walls and control over sightlines, Mr Sommerville agreed to form a joint access for The Pines and Kilkatrine emerging onto the road at a triangular area on their mutual boundary (“the joint access”). This gained approval and was constructed some time around 1992, with appropriate provision made in due course in the titles of these two properties. Since that time it has served as the access from the road to Kilkatrine. The front boundary walls of the two properties are angled in towards the bellmouth, widening the pavement and improving visibility. The bellmouth is tarmacced and approximately 14 metres wide. A driveway leads up for approximately 30 metres on a steady slope to the front of The Pines. The driveway into Kilkatrine is shorter, and includes a short steep stretch at a gradient of up to about 1 in 5 over a very short distance, up to an ample level parking area at the front of the house.

[11] The Cannings used Kilkatrine as a bed and breakfast, apparently explaining the extent of the car parking area. This house was sold to a Mr and Mrs Connelly in around 2002 and by them to the respondents in 2003. As within the Holly Robin site, the area over which the (undefined) route within the Kilkatrine site towards the access bridge would lead has a raised ground level, there being a septic tank and soakaway in this part of the garden. The access bridge is very approximately 5 metres from the edge of the car park. There is currently no indication of any route towards the access bridge.

[12] The plan attached to the 1990 disposition shows a bell mouth road opening formed across the pavement. Certainly since 1995, there has been no such opening and no dropped kerb. There is no planning permission or “Road Opening Permit” (a separate requirement under roads legislation) for this exit to the road.

[13] Mr Stephenson acquired the Holly Robin site in 1996. The site was then a field. Its north-east boundary was the middle line of a burn, around 2 metres wide, separating it from the Kilkatrine site. There was a small clearing beside the road bridge over the burn. A gate, set back slightly, led into the field.

[14] Mr Stephenson, with the assistance of Mr Cannings and Mr Cannings’ son, built the first house on the Holly Robin site over an extended period from 1996. This house, Holly Robin Lodge, is on higher ground towards the southern corner of the site, on the opposite side from the access route. The works, however, included substantial earthworks associated with the provision of foul water drainage, a septic tank and soakaway, rainwater drainage, mains water connection and landscaping. These works resulted in service pipes crossing the area of the access route and the ground level there being raised by very approximately one metre above the level of the bridge across the burn. A hedge was planted, covering much of the access route. Various planning permissions were obtained for Holly Robin Lodge and subsequent extensions thereof. A new driveway, for which there is apparently full approval, led directly from that house in a straight line to emerge onto the road, very approximately 20 metres to the south-west of the point at which the access right route reaches the road.

[15] The access bridge was of amateurish construction. It consisted of abutments on either side made from concrete slabs laid horizontally on top of each other and resting on rock and loose stone foundations, with, apparently, 5 profiled steel sheet piles spanning and overlaid with some sort of wooden beams or platform. The access right across it (more accurately, to the middle of it) has apparently not been exercised since some time around the early 1990s. Some time during the period of construction of Holly Robin Lodge, Mr Beattie, working for Mr Stephenson, took a 4½ ton JCB across the bridge to uplift some building material on the other side. The bridge was then in a rickety state. There is no evidence of any use of it since then. It has continued to deteriorate, with the foundations, such as they were, being gradually eroded by the burn, the steel sheet piles removed and the abutments now at different levels. It is unusable. It would be necessary to rebuild the bridge in order to exercise the access right again. In relation to vehicular access, it would be necessary to obtain planning permission, SEPA approval (as to which there is no apparent obstacle) and a Road Opening Permit, and to construct a road and bridge to an appropriate standard. Some alteration of ground levels on both sides of the bridge might be required and the applicants’ water supply pipes would need to be moved.

[16] In November 1996 Mr Stephenson instructed his solicitors to enquire of the roads authority about the status of the exit crossing the footpath from the route of the access right. The authority replied on 27 November 1996 confirming that there was no approved access from the road to either the Holly Robin site or the Kilkatrine site, and adding:-

“The access shown was, I understand, temporarily constructed whilst the neighbouring proprietor constructed the house now known as Burnside. This property now has approved shared access on its north side, remote from Mr Stephenson’s grounds.”

Mr Stephenson did not ask Mr Cannings to agree to discharge the access right.

[17] A second house, The Robins, was built on the Holly Robin site, again towards the more elevated rear part of the site, between the first house and the burn, in around 2009. Its water supply pipes also cross the access route. The planning permission for this house did not include a separate access, access being possible by an extension of the driveway for Holly Robin Lodge. The applicant, however, constructed a separate drive giving direct access to the road, across the pavement, with the kerb dropped, without any permission. A retrospective planning application for this access was granted on 20 July 2011, subject to conditions including the formation of visibility splays of 75 metres by 2.4 metres and no obstruction exceeding 1 metre above the road level within the visibility splay. This driveway, although apparently fully formed, is not currently used, its entrance gate being secured shut by a large boulder. The north-east edge of this driveway is some 2.5 metres from the southwestmost point of the defined route of the access right. The applicant placed The Robins on the market for sale, but removed it following the emergence of the present dispute and presently uses it for holiday lettings. The front garden of the Holly Robin site is not divided and that area has been substantially landscaped with tiered gravel areas, a pond and planting.

[18] The A815 leading in a north-easterly direction from the joint access runs into a gentle right hand bend commencing some 60 metres from the joint access. Another house, Kilkatrine Lodge, is situated on the bend very close to the road. There is limited visibility between the joint access and vehicles emerging from the bend, a situation which is slightly exacerbated by vegetation in the front garden of The Pines and a high hedge at the boundary between The Pines and the garden of Kilkatrine Lodge. Cars turning left out of the joint access have to accelerate at a greater rate than normal in order to avoid causing vehicles emerging from the bend at speed to have to brake sharply. Vehicles sometimes flash lights in annoyance at encountering cars which have emerged from that access. Such incidents occur from time to time. Cars turning right out of the joint access can usually reach the other side of the road in time to avoid such incidents, although larger vehicles and, for example a car plus trailer, may require the assistance of someone standing on the other side of the road giving directions. Vehicles stationary on the near side of the road at or around the joint access may be in danger from traffic emerging from the bend. An accident happened in this vicinity involving a stationary bin lorry on the road.

[19] The Holly Robin Lodge access from the road, and The Robins access, do not suffer from the same visibility problem as the joint access.

[20] There are no such visibility problems looking up the road in the other, south-westerly, direction.

[21] The respondents, who are becoming slightly elderly and suffer from certain ailments, and in particular Mrs Thomas, have become increasingly concerned about the safety aspect of using the joint access, particularly, but not only, when turning left out of it onto the road. At some time since they took entry they decided to take steps to try to resume exercising the access right for pedestrian and vehicular traffic. The first indication they gave the applicants of that intention was a letter from Mr Thomas to the applicants’ solicitors dated 27 December 2010. A meeting was suggested to mark out the access to an agreed pattern in accordance with the titles. The applicants’ outright opposition led, after some correspondence between solicitors, to the raising by the present respondents in December 2011 of a sheriff court action for declarator of the access right and interdict against obstructing it. The applicants’ defences, prior to the sisting of the action, tabled pleas of prescription under Section 8 of the Prescription and Limitation (Scotland) Act 1973 and extinction by abandonment.

[22] Mr Thomas has made limited enquiries into the feasibility and cost of restoring the access and resuming exercise of the access right. This would involve obtaining the necessary consents; building a suitable new bridge to comply with planning, SEPA and building warrant standards; forming new driveways leading from the Kilkatrine car park to the access bridge and from the access bridge over the defined access route to a new bellmouth; complying with visibility splay requirements; and moving some services and dealing with septic tank soakaways apparently on both sides of the bridge. Over the defined access route, the width would be limited to approximately 2.5 metres. The existing vehicle access using the joint access would remain available, in particular for use by larger vehicles including any emergency vehicles.

Parties’ Submissions

[23] On the applicants’ behalf, Mr Macdonald made submissions on the credibility and reliability of witnesses, particularly criticising the respondents’ evidence on the extent of their safety concerns, the explanation for their failure to assert their right until December 2010, their failure to challenge the planning application for The Robins and the lack of documentary support for their position, for example in relation to the cost of restoring the access route and the likelihood of obtaining the necessary consent. He referred to correspondence from the planning authority, including the letter of November 1996, in relation to the history and status of the access route. He submitted that although the applicants had not produced documentary evidence about the prospect now of obtaining consents, they had produced as much as they reasonably could.

[24] In relation to the statutory factors, Mr Macdonald submitted that the purpose of the title condition (factor (f)) was on the face of it to afford a means of access, not then available otherwise, to the public road, although there was dispute as to whether the dominant proprietor had ever used it after the construction phase. Whether or not the purpose was ever actually fulfilled, there was now a better servitude documented in the respondents’ title. The new access itself constituted a change of circumstances (factor (a)). Further, the servient property, once an open field, was now fully developed with the two houses and their associated services. There was also now a neighbourhood trend of direct access onto the road. The benefit to the dominant proprietor (factor (b)) was confined to a perceived safety advantage, which considered objectively was more probably neutral. It was normal to have one access route and few sought the maintenance liability of two, dealing with neighbours and the possibility of a gate. The respondents had not considered the possibility of direct access to their property from the road. In relation to the extent of the burden (factor (c)), it was conceded that the respondents could not refer to expense on them, but there was a clear and substantial impediment to the enjoyment of any property burdened by a vehicular access right. Although the route could be screened, it would not be conducive to holiday letting of The Robins. No reliance was placed on factors (d), (e), (g), (h) and (i). In relation to factor (j), Mr Macdonald submitted firstly that the issue of planning consent was really one of practicability, referring to the questions whether the respondents had under the 1990 Disposition any right to enter upon surrounding land (cf Melville v Crabbe), the issue of consent and the question of cost. Secondly, while the Tribunal could not find extinction by abandonment, there had been a large degree of acquiescence, Mr Cannings having assisted the applicants to act in breach of the servitude and having taken no steps to assert the right. The respondents themselves had also contributed to the destruction of the bridge and stood by while The Robins was consented to and built. References were made to Colecliffe v Thomson, G v A, Gibb v Kerr and Graham v Lee.

[25] On behalf of the respondents, Mr Stevenson reviewed the statutory factors. On factor (a), the change in the burdened property was not important, because there were no buildings on the route of the servitude. It was not accepted that there was any limitation of the purpose to the period of construction. On factor (b), the submission that planning consent would not be obtained was entirely speculative. On Mr Thomas’s evidence, there would be no great difficulty. On factor (c), the access right did not impede enjoyment of the applicants’ property: there should not be a substantial hedge crossing the route, which was well away from the houses. The issue of the cost of restoring the route was irrelevant unless the view was taken that the respondents’ concerns were spurious. The higher the cost, the more it was clear that their concern on the issue of road safety was serious. They had both raised the court action and defended this application. The applicants were not being expected to spend money, except to undo what they had done on the ground. It was not clear why Mr Cannings had not been asked to discharge the servitude, but perhaps he would not have agreed. Factor (g) was not considered relevant.

[26] Mr Stevenson made a number of points under factor (j). He submitted that participation in the removal of girders from the bridge was of no significance, as they could not serve any purpose in restoring it. The respondents had not acquiesced in any breaches of the servitude. They, the persons facing the hazards, were best placed to judge the safety issues. It was one thing if a new, replacement route was reasonably convenient, another if its use was problematic. The respondents would keep the joint access. Reference was made to Cusine & Paisley, at 12-124,129, in relation to the extent of dominant proprietors’ rights.

[27] Mr Stevenson made a brief submission on compensation if the application were granted. This would be for loss of what the respondents considered to be a safer means of access. It was hard to put in monetary terms, and was almost a solatium issue in relation to worry and upset.

Tribunal’s Consideration

General

[28] We start with some general observations, and some views on the competing positions, before specifically considering the factors listed in Section 100 and to which we are required to have regard.

[29] As the applicants accepted, the Tribunal does not have jurisdiction to determine whether the access right remains legally valid. It is at least a “purported title condition” and we have to take it as we see it expressed and consider whether we are satisfied, in the particular circumstances, that it would be reasonable to discharge it. The right was the subject of express provision in the 1989 and 1990 dispositions of the two properties. We are in effect being asked to remove it without giving the respondents the opportunity to try to establish in the court proceedings that it remains valid and to resume exercising it.

[30] However, there is some overlap between the factors which we can properly consider and the legal issue of abandonment. It is beyond argument that for many years – most of the time since it was created – there was really nothing to indicate that this was a live right. On the ground, it looks like a long forgotten means of access to the respondents’ property. The respondents’ predecessors, although not the respondents themselves, acquiesced in inconsistent development of ground on the access route. These matters are relevant to the issue of reasonableness.

[31] Sadly, but as sometimes happens in such disputes, the parties’ personal relationships have broken down, leading them to distrust and reject each others’ positions. Looking at matters objectively, however, we are satisfied that each has an understandable basic position.

[32] We reject the criticism of the applicants that he deliberately set about making this access impossible. As we see it, they came on a situation in which an apparently temporary access had been replaced by the joint access and, to all intents and purposes, simply given up. They then developed their property inconsistently with the access right. They did not ask Mr Cannings to discharge the right because, as Mr Stephenson told us, the route was never used and not required.

[33] That seems understandable, but it means that the applicants took a risk that a neighbouring owner might, within the prescriptive period, try to use it again.

[34] Despite the development which has taken place on the applicants’ land, we are of the clear view that resuming exercise of the access right need not amount to a significant interference with the amenity of either of the applicants’ houses when regard is had to the particular location. We also regard it as entirely practicable (although expensive), subject to obtaining necessary consents. The obstructions, including the hedge, would of course have to be removed, and the service pipes moved, but these steps did not seem to us insurmountable. The hedge is not aligned with a straight hedge of a matching variety further along the applicants’ roadside boundary. If screening for The Robins from a drive leading to the neighbouring property were required, it could easily be provided. The applicants do not appear, in terms of the access right, to be under any financial obligation in relation to its construction, so the necessary works would be at the respondents’ expense. We also doubted whether the access right brought into use at the corner of the site, well away from the nearer of the two houses, would have any measurable effect on value.

[35] We reject the applicants’ criticism of the respondents’ concerns about the access which has been developed on the other side as, in Mr Macdonald’s word, ‘spurious’. We found both respondents credible on this in the witness box, a view quickly confirmed when we went ourselves to the joint access and witnessed several vehicles, some heavily laden lorries, passing by at some speed. Mr Sommerville, with whom the respondents share that access, seemed to us to be an impartial witness. He spoke to his problems trying to develop an access on his own ground, and confirmed that, turning out to go east, in his words, ‘you can’t hang about’. The recently imposed 40mph. speed limit had brought about ‘a slight improvement’. We accept that individual reactions to this might differ, and it clearly took the respondents some time to decide to try to do something about it. Their concern appears to have built up gradually, perhaps with an increase in the volume and nature of the traffic. We can imagine worse hidden accesses, but we did consider it a reasonable concern on the part of owners of Kilkatrine. It was, in our view on an objective basis, reasonable, because of this concern, to consider the possibility of creating an alternative access.

[36] The fact that the respondents raised court proceedings in the face of the applicants’ denial of the right is an indication of seriousness on their part. We had, however, some difficulty about their position on the practical prospects, and expense, of resuming exercise of the access right. It may be understandable that they have not felt it worthwhile to give more detailed thought to their proposal until they know whether they have the right, but this leaves us in some doubt about the extent of benefit which they derive from it. Mr Thomas spoke to very recent discussion with an architect relative and a quantity surveyor friend, the latter having said that it could be done “considerably cheaper” than an outline estimate (for the bridge alone) of £40,000 to £50,000 given in the applicants’ engineer’s report, which Mr Thomas had thought “gold-plated”. Mr Thomas had concluded that it could be done for “not much more than £10,000”. This was very unclear evidence and did not indicate to us that much thought had gone into the practicalities. We thought Mr Thomas’s figure likely to be a considerable under-estimate when everything necessary is taken into account.

[37] Another aspect, crucial to the issue of benefit to the respondents, is planning. We are in no doubt that it would be physically possible to restore the access route, but if planning permission and a Road Opening Permit were not obtained, the respondents could not use it. The evidence about this too leaves us in some doubt. The applicants, having clearly pled that no such permission would be obtainable, led no evidence to that effect, although Mr Stephenson was willing to give his own opinion on the matter. Their access to The Robins, immediately beside, obtained permission (although it was not explained to us why, as we saw when we went to the site, that access is currently blocked, which might – or might not – be related to a condition of the planning permission). Mr Thomas told us about a meeting with a council roads engineer on the site. He had, he said, been told that there appeared to be no reason in principle why permission should not be granted. There was no written record of this meeting and no clarity about the extent of information given to the engineer, for example about control over sightlines. We were not shown the relevant guidelines. This is a location which does not have the same visibility problem as the joint access, but the proximity to another access and to the railings on the nearby road bridge, and questions about control over the visibility splay, might be factors. It was by no means clear to us that the necessary permissions would be obtainable, but we are in no position to conclude that they would not.

[38] It is also clear that there has been acquiescence by the respondents’ predecessors over the years in the applicants’ development of their property, including works in the area in question. The applicants further relied on the respondents’ failure to object to the planning application to build The Robins, but we do not see the significance of a planning application, after works obstructing the route had been completed, for another house well away from the route. We also do not attach any significance to the respondents’ involvement in removing girders, which we do not think would have been of any use in any rebuilding of the bridge.

[39] Works in the vicinity of the access bridge on the respondents’ side also apparently raised the ground quite substantially, adding to the impression that this is merely a historical access. We did not, however, think that the raised ground levels would pose any real problem in creating a new bridge and driveway.

[40] The respondents’ inaction for seven years after they purchased their property is another factor to be considered. Their explanations for delay of this length, that they had other things requiring attention at the house, that they suffered ill health and that they did not feel able to approach the applicant on account of the breakdown of relations, were unconvincing. Accepting that their concern is genuine and reasonably based, it seems to us that they cannot have formed the intention to deal with it in this way until relatively recently.

[41] The Tribunal noted that on paper it looked possible to make an opening within the respondents’ property, on their side of the burn. Mr Thomas’s answer to that was to refer to the difference in height between the car park area inside and the road and the existence of the septic tank and soakaway just up from the bridge. We can accept his figure of approximately 5 feet height difference, which might make it necessary to excavate a more substantial area where the car park is presently but that area, like the ground on the other side, would appear to be at least mostly made up ground. We did not consider that the septic tank or soakaway would pose any serious problems, although of course adding considerably to the expense. Proximity to the road bridge over the burn might not be any more of a problem in this case as under the access right. We are in no position to reach any conclusion about that, but do wonder whether that solution, saving the major cost of building a new bridge to an acceptable standard as well as avoiding going through a neighbour’s land, might have received more consideration.

Consideration of the statutory factors

[42] (f) It is often useful to look first at the purpose of the title condition. Parties are agreed that the purpose was, as is obvious, to provide access to the Kilkatrine site, and the applicants came to accept that they had not established that this was a temporary purpose associated only with the building of the house. The starting point is the wording of both dispositions, in each of which there is no qualification of a permanent servitude right. The 1989 Disposition envisages construction of an access roadway. The 1990 Disposition plan shows a defined road opening. The Kilkatrine title apparently did not initially carry any right to develop the present joint access with The Pines. It is not clear why direct access from the road was not pursued. Although the planning position is not clear and it does not appear that this access ever had the necessary consents, the servitude appears to have been intended to enable access on a permanent basis.

[43] (a) There is no doubt that there have been substantial changes since the title condition was created. The construction of the joint access, with planning approval, coupled with the subsequent disuse and neglect of, not only the route of the access right but the approach within the Kilkatrine site to it, is of considerable significance. The Kilkatrine owners did not use this access, maintain the route or give any indication of any intention to exercise the right, for a period of not less than 15 years. This must be set against the respondents’ concern, which we have held reasonably based, about the new access. If an access right through another’s property is replaced by a direct access of comparable standard, that will usually (as the decisions cited by the applicants illustrated) be a change of circumstances pointing strongly to the reasonableness of discharge, because the purpose of the condition is equally well fulfilled by the new access. If, however, experience of use of the new access has shown it for some reason to be difficult, it may be reasonable to consider reverting to the first route.

[44] The changes in the character of both properties appear of themselves to be of limited significance. Residential development of both sites was clearly in mind. The development of the ground in the area affected by the servitude is more significant, but the access route could be restored without undue difficulty and without causing significant disturbance to the applicants’ property.

[45] (b)(i) The applicants argue that with the established alternative access, and also as there is no practical prospect of developing the access route, the title condition is of no benefit. In our view, the position is not nearly as straightforward. Assuming the servitude to be valid, the respondents have an option to resume exercising it and have shown why that may be of benefit despite the existence of the joint access on the other side. We do, however, think that the respondents might have done more to persuade us of the actual practicalities of restoring the route. It is of course for the applicants to persuade us that the application for discharge is reasonable, but in the case of this long disused right, which would require substantial works to restore, it is reasonable to look for more certainty that the respondents would be in a position to restore it, as otherwise it is simply an empty right which is of no benefit. On the evidence, the benefit is a possibility, rather than a certainty, of being able to exercise the right, but it is a significant possibility where there is concern about the alternative access.

[46] We reject the applicants’ argument to the effect that they would in any event be entitled to block the restoration of the route because there is no express provision entitling the dominant proprietors to enter on surrounding land. Cusine and Paisley’s treatment of this issue, at 12-124, 129, is persuasive, although they may not have been considering situations in which the servitude had lain unexercised. The wording of the grant of the servitude does not appear to us to offer any support either for this line. We would, in any event, as in Melville v Crabbe in which a similar argument was taken, hesitate to regard it as an acceptable approach to the issue of reasonableness. Assuming the servitude to be recognised, reasonable neighbours would permit the access route to be constructed and maintained by the dominant proprietors as provided for by the 1989 Disposition. It would be otherwise if we felt that access to the applicants’ land for the purpose of the works to restore the route would cause them (or any occupiers of either of the houses) any significant continuing inconvenience.

[47] (c) We do not consider that this condition impedes enjoyment of the burdened property to any significant extent. As a generality, of course, there is, as the applicants submitted, an impediment to the enjoyment of any property affected by a vehicular servitude right. However, looking at the actual position in this case we find a right which does not involve sharing an access facility and which affects only a very small area at one corner of the applicants’ property. There is in our view no significant effect on the residential amenity of the Holly Robin site. Because it would not cause substantial inconvenience if it was exercised, it does not seem to us that its mere existence on the title is a serious problem for the applicants, who were content to purchase, and develop, their property as the title stood.

[48] (d) This factor has no application.

[49] (e) Neither side relied on the length of time since the condition was created. This is itself is not a factor which points either way.

[50] (g) This is not a case in which the applicants can point to any use for which they have planning permission and which is prevented by the condition. The applicants are not hampered in any significant way in their use, or development, of their property.

[51] (h) Although the respondents tabled a very generalised claim to compensation, we do not think that the factor of willingness to pay compensation has any part to play in considering the reasonableness of this application.

[52] (j) Matters relied on under the head of any other factor which the Tribunal considers to be material have to some extent entered our consideration of the specific factors. The extent of acquiescence over the years in actings inconsistent with the servitude is clearly relevant, as is the respondents’ inactivity and delay in giving notice of an intention to resume exercise of the right. The prospect of obtaining the necessary consents is in our view part of the consideration of factor (b). A factor which can be of relevance in some situations is the increased potential for trouble between neighbours who have to share an access, but that does not arise here and problems (which unfortunately might be anticipated) during the restoration of the access route would be of a temporary nature.

Conclusions

[53] Drawing these considerations together, this is a permanent servitude right which we must take as valid for the purposes of our consideration, but for most of the time since it was created, it has on the ground appeared to be a disused temporary access, with both the dominant and the servient proprietors acting on the basis that it had been replaced by another, permanent, access and in effect has been abandoned. There is a live issue as to the validity of the right, it is not clearly established that the necessary consents will be obtained and the respondents have not drawn up plans or established the cost of their proposal. The respondents have, however, shown a reasonable requirement to try to resume exercising it and the applicants have not established that the route could not be restored and used. This is not a condition which impedes enjoyment of the servient property to any significant extent at all. The applicants purchased their property subject to this unrestricted right of vehicular and pedestrian access over one small area. A new drive at that location leading to the neighbouring property should not be a problem for the owners of either of the houses on the Holly Robin site.

[54] We regard this case as evenly balanced. The situation on the ground – a long disused access which had indeed never been properly formed – is a powerful factor, to which the elements of acquiescence by a previous dominant proprietor and inaction by the present dominant proprietors must be added, and an alternative access has of course been developed and used for some considerable time. However, contrary to the applicants’ submissions, we have found that the respondents have a legitimate reason for reconsidering exercise of this servitude.

[55] Despite our doubts about the respondents’ explanation for their delay between 2003 and 2010 (since when they have been attempting to vindicate their right), we do not in the end consider it adds very much as it does not seem to us to have had any particular effect on the applicants’ position. Although they built the second house, the applicants did not in our view materially alter their position in relation to the servitude during this period. Ex hypothesi the respondents had this property right for a period of 7 years before deciding to exercise it. In the circumstances of this case, that does not seem to us to add much to the case for discharging it. A very much longer period, perhaps bringing factor (e) into play, might be different.

[56] The respondents’ proposal would not in our view cause the applicants any significant inconvenience. Overall, despite the factors pointing in favour of the applicants, we do not feel that the point has been reached where it can be said to be reasonable to remove this property right. If the respondents fail to establish its continuing validity, or fail to obtain the necessary consents to use the route, the matter will be at an end. Further, there might well come a time when the respondents’ failure or inability to advance their proposal would make it reasonable, applying the test in our jurisdiction, to bring the servitude to an end. We do not think that that time has arrived. The respondents should have the opportunity to establish the validity of their right and exercise it.

[57] It might become reasonable to discharge this right if the respondents, having intimated their decision to resume exercising it, fail to follow through on that. In that situation, we have considered continuing these proceedings for a period, in effect to see whether the respondents do indeed follow through. We have followed such procedure, in the exercise of our discretion, in occasional rare cases. We have, however, decided in this case that it would not be appropriate, particularly because of the interaction between our jurisdiction and the court’s jurisdiction to determine the validity of the servitude. We fear that such a step might in the circumstances simply add to uncertainty and expense.

Decision

[58]We have therefore decided to refuse this application as we are not satisfied, on the evidence and submissions and indeed our site inspection, that it is reasonable at present to discharge this servitude.

[59] We wish to emphasise that if the respondents do not advance their proposal within a reasonable timescale, the result of a further application to the Tribunal might be expected to be different. The respondents should therefore now carefully consider all the various items of expense involved and, if they decide to proceed, take the necessary steps to advance their court claim without delay and to restore the access route. As we understand it, their raising of court proceedings may (unless the right had already prescribed) have started the period of prescription running again, not just interrupted it. If, however, they then fail to vindicate and exercise their right, so that the only reason the servitude has not prescribed can be seen to be their commencement of court proceedings, the argument that it would be reasonable for the Tribunal to discharge the right might appear difficult to resist. We must, however, add that we are not able to bind a future tribunal.

Compensation

[60] If we had granted this application, we would not have awarded compensation. The respondents really led no evidence from which we could conclude, in terms of Section 90(7)(a) of the Act that they would suffer “any substantial loss or disadvantage” as owners of their property in consequence of an order discharging this right.

Expenses

[61] If any issue is raised as to expenses, we would propose to consider this on the basis of written submissions, in accordance with the Tribunal’s normal practice.


Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 21 November 2012

Neil M Tainsh – Clerk to the Tribunal