OPINION

Cope & others and Stock & another v Ms X

[1.] The applicants seek to vary a title condition giving Ms X a right of access to her home at Lethy Steading, Essendy, near Blairgowrie. This is a converted farm building and is accessed by a track or tracks leading from the public road at Essendy. The present route to Ms X’s house runs close to the second applicants’ house at Berrybrae. The applicants seek to change the route to take it round the outside of their property. A new road has been built but it is not acceptable to Ms X.

[2.] We heard evidence at Perth Sheriff Court on 22 to 24 August 2012 and submissions at Edinburgh on 11 October. The second applicants were represented Ms Kirsty Slee, solicitor. Ms X appeared on her own behalf. She has various degrees including an LLB but is not a practising lawyer. Miss Slee made it clear that she was instructed only by the second applicants. She led the first applicants, Mr and Mrs Cope as witnesses but was not acting on their behalf. Although they owned the bulk of the land burdened by the routes Mr Cope said that he did not regard himself as having any real interest in the matter. The new road was there. He was using it. He was prepared to accept 75% of the liability for maintenance. His understanding was that if Ms X was successful and recovered an award of expenses, the second applicants were to take responsibility for these.

Statutory provisions and authorities

[3.] The case was based on the provisions of Part 9 of the Title Conditions (Scotland) Act 2003 and we refer below to the various factors set out in section 100. In the course of submissions, reference was made by Miss Slee to various decisions of the Tribunal including Ord v Mashford, 12 March 2005; Graham and Fletcher v Parker, 14 March 2007; Jensen v Tyler, 25 April 2008; Colecliffe v Thompson, 1 April 2009; Brian v Kitchen and others, 28 October 2010; and McNab v Smith, 15 June 2012. However there were no contentious issues of law and nothing turned on these references.

Description

[4.] Our site inspection involved consideration of a number of different aspects of the case. As is not uncommon in relation to applications for discharge or variation of title conditions, even very full written description can seldom adequately reflect the impressions and understanding derived from site inspection. We do not attempt a full description of the routes and topography but a brief overview is needed to set matters in context. We shall use letter labelling taken from the plan produced but intend that it should be possible to understand the reasons for our decision without having sight of the plan itself. The relevant area is, of course, well-known to the parties.

[5.] The respondent’s subjects have a right of access from a minor public road. From the junction with that road, the access is a farm track running steeply south uphill and then curving west on comparatively level ground to the point, C, where it enters subjects now owned by the second respondents. C is about 640 metres from the public road. It is at this point that the old and new roads diverge. In very broad terms the old route and new route can be seen to form four sides of a long rectangle, although the configuration of the west side is not a straight line at its north end where the track runs alongside the old boundary of the second applicant’s property. The rectangle measures, very approximately, 150m by 450m. The new route runs in a straight line from C to I and forms the long east side of the rectangle. From I, it continues in a straight line to Lethy Steading, a further 360m. The existing route runs west from C to D at the north west corner and then south and round two bends, or corners, along the old boundary to a point F. It then runs for about 365m on a straight line south to H before turning east to I. The point D marks the entrance to the subjects at Berrybrae as they were when the existing route was built.

[6.] Most of the comparison of the perceived difficulties of the two routes related to comparison of the effect of slopes towards the northern end of the rectangle. On the existing road there is a modest dip to the south near D and the track then goes steeply up round the two bends to a high point on the section F to H. This was referred to as point G. The new track is at a lower level but it has a pronounced dip from C down to a point X before rising in a slope to the south to a crest at Y.

Submissions

[7.] We heard careful submissions from Ms Slee as to the proper approach to our jurisdiction under the 2003 and to assessment of the factors set out in sec 100. But there was no dispute about this and it is unnecessary to repeat these submissions. We also heard detailed submissions on the factual evidence and the inferences properly to be drawn from it. We do not attempt to record such submissions but we discuss the more important contentions below. Ms X helpfully prepared a written summary of her submission and the pleadings set out much of the competing factual contentions.

Discussion

[8.] Put shortly we agree with the respondent’s submission, that in the context of the present case, the problem lies in the balancing of factors (b) and (c). However we must have regard to all the statutory factors and it is convenient to start by looking at each of the other factors in turn. However, it may be observed, at this stage that we saw no reason to doubt the credibility of any of the witnesses. As usual we had to test the reliability of pieces of evidence in the context of the case as a whole. Our impression, however, was of witnesses all trying to be careful about the evidence they gave. The main conflicts lay in their assessments of future risks.

[9.] (a) Change of circumstances. There have been some relevant changes in circumstances. When Lethy Steading was created as a dwelling house the most suitable access was thought to run along the boundary of Berrybrae and to use part of an old track in the vicinity of the reservoir. A new track was built to extend the track to an existing track at point H. At that time the route did not run through the policies of Berrybrae. However, the second applicants have since acquired land from the first applicant. For relevant purposes this can be described as approximately the northern third of the rectangle referred to above. The second applicants are in course of constructing an orchard and amenity ground, including a pond, on this land. The current access route accordingly runs through the policies of Berrybrae.

[10.] (d) Positive obligation. The obligation in question is not an obligation to do anything.

[11.] (e) Length of time. We do not consider the length of time since the burden was imposed to have any possible bearing in the circumstances of this case. We have, of course, have regard to the respondent’s submissions that they have been able to use the existing track for the last 10 years without undue maintenance cost.

[12.] (f) The purpose of the title condition. The purpose it to provide access for pedestrian and vehicular traffic to the residential subjects at Lethy Steading. That is an important purpose. On any view we need to be satisfied that the new track serves the same purpose. We have considered whether the purpose can be qualified in any useful way. It can clearly be said that the purpose was to provide “adequate”, “reasonable”, or “suitable” access. However none of these terms advances matters in any relevant way. It might be thought that “safe” access could be implied but there is no proper warrant for any such qualification. Safety is mainly dependent on weather conditions.

[13.] (g) Planning permission. It was not suggested that there was any relevant planning issue. Ms X did submit that if the new track was to be changed planning permission would be required for this. However there was no evidence of any such need and as there is no proposal to change the new track in any significant way, this issue does not arise.

[14.] (h) Compensation. It was the owner’s contention that the new route would be at least as good as the old and, accordingly, no direct question of compensation arose. A somewhat confusing suggestion was made, in course of submissions for the second applicants that they might be required to meet the cost of any future maintenance up to a sum of £10,000 if we considered this necessary. However, this was not advanced as a positive offer and we do not think any persuasive basis for such award has been established.

[15.] (i) Registration provision. This provision is irrelevant to the present case.

[16.] (j) Other material factors. Ms X contended that it was relevant to have regard to the conduct of the parties at the time when the new road was created and to the conduct of the applicants in relation to the attempts to reach some form of agreement. She also led evidence of various actings of the applicants which she said showed their attempts to use improper means to persuade her to agree to the new road. We allowed some evidence of these matters to be led although there was agreement on both sides that it would be unnecessary to consider the detail of negotiations. In considering issues of variation of real rights, the Tribunal has always stressed that the personal circumstances of individual proprietors can have little weight. Successors in title will not be influenced by the detail of personal acrimony. It was recognised that reference might have to be made to negotiations in relation to any issue of expenses.

[17.] However, it must be said that we are not persuaded that close examination of the conduct of the parties would prove to be a balancing factor in favour of the respondent. We do have a concern that Ms X was, perhaps, too close to the problem to view it dispassionately. This led her to present every possible objection she could to defeat the application. Some of the matters founded on were, to put it charitably, of little significance. While this approach may be said to be typical of a party litigant it gives rise to a risk of downgrading the weight of the substantive points. Although we must at least indicate our approach to the various issues raised, it is right at this point to stress that we came to the view that the main issues related to the perceived risk of higher maintenance costs and of more difficulties in winter weather. The time taken to deal with the other issues may tend to give a misleading impression of their importance.

[18.] As an example of petty points of no relevant substance we might instance the evidence led from her neighbour Mrs Bluett. A statement had been submitted by Mrs Bluett setting out various views critical of the new route. Mr Cope had wished to speak to her and had phoned her at work. Evidence about this was led in an attempt to discredit Mr Cope. It may be said that we did come to conclude that Mr Cope was so entirely satisfied in his own mind that the new road was better that he thought the views expressed by Mrs Bluett were ridiculous. He may well have been somewhat less than tactful in his approaches to her. However, we did not find this type of material of any assistance in addressing the questions before us.

[19.] We are not persuaded that there was anything unreasonable about the conduct of the applicants in their construction of the new road. It is to be noted that there was no suggestion that Ms X had taken any direct interest in the technical detail of construction of the old route. There was an obvious need for access but she had left it to Mr Cope to build the road. We do not accept that it was proved that the respondent’s satisfaction as to the “specific route chosen” was material to her purchase of the subjects at Lethy Steading. We heard Mr Cope’s evidence that when the new route was proposed to Ms X she said something to the effect that that was the obvious route in the first place. Before us, she made it clear that she did not accept that she had said this and we need make no finding about it. However, the exchange on this point would have been an obvious opportunity to put the proposition that, on the contrary, she had been anxious from the outset to have the specific route. We think it unlikely that she made any conscious decision that the long route round was better than a shorter route. We further note that if the specific route chosen had, indeed, been material to her thinking, she might have been expected to check her title to see that that was, indeed, the route she acquired. We return briefly to this in a different context.

[20.] We are satisfied that Mr Stock intended to provide a suitable replacement road. It was to be used for Lethy Steading and Mr Cope’s purposes. There is no reason to think that Mr Cope could have been expected to agree a substandard road. When the new route was proposed it was not unreasonable for the applicants to expect the respondent’s agreement. Mr Stock did not know Ms X and they arranged that Mr Cope, who was on friendly terms with her, would talk to her about it. He discussed it with her. It is not suggested that she voiced any objection at that point. Although she disputed the suggestion that she responded positively by saying that it should have been built on the new line from the beginning, we have no doubt that Mr Cope had the impression that she was quite happy with the proposal. He told Mr Stock who went ahead to discuss construction with expert road builders. He obtained quotations. He choose Mr Dewar. He had had experience of the quality of Mr Dewar’s work. We heard no suggestion of any basis upon which he might, far less should, have thought that the new road would be, in any way, inferior to the old. Mr Dewar quoted for three different grades of road depending on the depth of infill used. Mr Stock chose the best. He accepted Mr Dewar’s quotation and arranged for the work to be carried out. We are entirely satisfied that, at that time, he thought the proposal would be a benefit to everyone involved.

[21.] He advised Ms X that the work was expected to start. Up to that point she had not contacted either Mr Cope or Mr Stock to express any misgivings. However, when she learned that the work was about to start she invited Mr Stock to discuss things over tea. There was conflicting evidence as to the nature of the meeting. Ms X said she tried to express her reservations but that Mr Stock did not listen, being too intent on persuading her of the advantages. We have little doubt that he did attempt this. This sounds perfectly typical of informal discussion. It was not clear from her evidence that Ms X contended that she expressed any particular point of concern about the new road. The correspondence lodged suggested that the discussion had included her suggestion that access to her subjects from the south east would be better. Although she contended that Mr Stock left her house in a hurry, she did not suggest that they had quarrelled in any way and, indeed, her letter of the following day, 26 October 2008, included comment on how nice it had been to meet and suggested that their children could play together. It is not disputed that Mr Stock said he would not proceed without discussing matters further with her. We recognise that this provides a basis for a belief that he acted unreasonably in doing so. However, after giving her that assurance, the second applicants received the letter in which the respondent simply refused to consent to a change of route. It did not give any indication that there would be a purpose in further discussion. Mr Stock considered matters fully with his wife and they decided to proceed with the contractual arrangements they had made. They recognised that it was important to take advantage of appropriate weather conditions. We accept that this was not done out of any desire to go behind Ms X’s back by taking advantage of her absence on holiday. It may be noted that this would only have been relevant if they had been meaning to build a sub-standard road. We reject that idea.

[22.] It is an important element in consideration of this matter that we have no doubt that, whatever the validity of any criticisms of the road which subsequently emerged – and to which Mr Stock responded – he genuinely believed that the new route would be a significant improvement on the old. We found it a striking feature of Ms X’s letter of 26 October 2008 that it simply intimated that she did not want to change the access. As she herself now says, in her written submission, it is obvious that in an ideal world the respondent would no more wish to drive through the second applicants’ land than they would wish her access to take that route. She was aware that this was a matter of importance to Mr Stock. She knew he had engaged contractors to carry out the work. The letter made no attempt to give any reason for her decision. The letter gave Mr Stock no reason not to go ahead. On the face of it there was nothing to discuss. She had considered the matter and made a decision. The reasonableness or otherwise of her conduct is not a factor we consider material and we need express no further comment. It is sufficient to say that we have not found any aspect of the conduct of the applicants in going ahead with the road to be relevant as a factor against the application.

[23.] The second submission which we consider under reference to factor (f) was based on a contention that the applicants had failed to make genuine attempts to reach agreement. Ms X had accepted our suggestion that it would be an expensive waste of time to explore all the detail of such attempts as were made to see where the point of failure lay. Accordingly we cannot and need not express a concluded view on this. However, it may be said that the issue before us involves a dispute as to whether the new road is a suitable substitute. Ms X has set out many reasons to support the view that it is not. In her questioning of witnesses she did not attempt to identify any point of objection which might have been dealt with in such a way as to allow her to withdraw her objection. It is hard to see what basis there could have been for a negotiated settlement in light of her insistence that the problems with the new road are severe and mostly insurmountable.

[24.] More generally, it must be said that we would not often consider that assertions of failure to negotiate were relevant to the merits of a dispute. It may be relevant in relation to expenses. If a party wishes to propose a compromise settlement, that should be set out in writing, preferably with a clear indication that it will be founded on in relation to expenses. It should not be disclosed to the Tribunal. At the end of the case, if the Tribunal is persuaded that that proposal should have been accepted, this may have a bearing on expenses. We do not consider any of the material on this head to be relevant as a factor to consider on the merits.

[25.] Ms X made a great deal of certain matters bearing on her use of the old road which she considered to be evidence of a deliberate intention by the applicants to downgrade the road and discourage her from using it. In the context of variation of heritable rights we cannot give much weight to aspects of personal conduct but, in any event we are satisfied that examination of the first of these matters does not support that contention and we are not persuaded that the others were so motivated. The first concern was that when the new road was built, Mr Stock put in speed bumps on the north section of the old road. If the respondent had agreed to use the new road at that time, these would only have affected access to Berrybrae. There is no evidence that when these were installed Mr Stock realised that Ms X would steadfastly refuse to make any use of the new road. When she complained about them, he immediately had them removed.

[26.] She complained that spoil from the new road had been dumped very close to the old road, thus affecting its drainage. Mr Cope said that when the spoil was dumped, he assumed that he would be able to put the old road back to agricultural use. He intended the top soil to be spread over the old road. Accordingly it made sense to dump it in that position. But in any event we are not persuaded that there is any sound basis for the suspicion that it was deliberately put there to impede drainage of the old road. It had to be dumped somewhere.

[27.] Mr Stock planted bushes and carried out other work in what, at the time, appeared to be part of the verge of the road around his house. Ms X thought the verge was part of the solum of the track which she was entitled to use. It appears that the planting may have been through the base of the existing track at that point but we have doubts about the extent of her right to use this. It was not the line of access shown in her servitude rights on the Land Certificate and it is fairly clear that it had the appearance of being part of the verge at that time. In any event, we are satisfied that Mr Stock was not motivated by any intention to make things difficult for the respondent. We also heard a great deal about the blackthorn hedge being allowed to spread suckers unchecked. These suckers could develop strong spikes. Indeed we understood Ms X to say that she had had two punctures because of the spikes. The presence of these suckers may indicate that Mr Cope was not attentive to his duties as a farmer or hedge owner. But, in so far as they impeded her access, Ms X herself could have dealt with them. We are not persuaded that the lack of proper hedge maintenance was a deliberate act by Mr Cope although we can understand why Ms X might have seen it in that light. We saw from the condition of the road from the public road that Mr Cope was not attentive to routine maintenance but, of course, liability for maintenance of that section is shared and further comment is not part of our remit.

[28.] We heard some confused evidence as to the circumstances in which poultry manure came to be dumped near the old road. It had an adverse effect on the surface. We would be surprised if this was the deliberate intention but we find it unnecessary to express a concluded view. We do not consider that the conduct of the applicants in respect of the old route is of direct relevance to the issues we must address. We accept that the evidence led by the applicants of defects in the old track should be discounted in so far as attributable to the presence of spoil and hen-pen but some such problems might simply be viewed as part of the problems of sharing the old road. For example, lack of hedge maintenance is simply a feature of country living. If it impedes a right of access, the benefited proprietors can deal with it themselves.

[29.] There was an aspect of the background which we did consider as a possible factor under (j). It is plain that the new track was built as a substitute for the old. It would not have been built if Mr Stock had not thought that it would remove through traffic from his policies. Having built it he now finds himself in an unusual situation. There was, at least a suggestion that it would not be fair to the applicants to ignore the intention. We see the force of this. If the applicants had come to the Tribunal proposing to vary the access to take both domestic and agricultural traffic out of their policies, this would have been a very powerful fact to weigh as an aspect of factor (c). However we have come to the view that Ms X is correct to say that we must simply look at things as they stand. She currently enjoys the benefit of virtually sole use of the old route. She is being asked to give it up and to share a route used by agricultural traffic.

[30.] Under factor (j) we have also considered the potential difficulty which the respondent might face because the access to which she is entitled in terms of her Land Certificate is not the same as the access which she is using at present. The applicants have made nothing of the point and Ms Slee very properly pointed out that if there was ever any dispute about the matter with a successor party, the situation could readily be resolved by an application to the Tribunal. Plainly Ms X has had use of a particular line of track and, if necessary, it would be reasonable to vary the title route to reflect that. We are satisfied that this difficulty should play no part of our assessment of reasonableness. We have touched on the point that it is far from clear that the respondent had any right to object to Mr Stock’s plantings at the verge.

The substantive issues - balancing of burden and benefit

[31.] We start with factor (c), the extent to which the condition impedes the enjoyment of the burdened property. We are satisfied that having a road running through the curtilage of a dwelling is a factor of material consideration. People value the idea of a private curtilage. The very fact of having to share possession is a burden. Plainly a track running through an owner’s land restricts the use that can be made of the land. The track itself is sterilised. The use of it by vehicles is intrusive in relation to privacy. However, having regard to the layout, we accept that in the present case privacy is not as weighty a factor as it might otherwise appear. A distinction can be drawn between the garden ground at Berrybrae and the field to the east of the track which Mr Stock is currently developing as an orchard. The purely domestic curtilage does not extend to the latter. We are not persuaded that the presence of the track intrudes greatly on the privacy of his home. The house and tennis court are well shielded by hedging in summer. A beach hedge will provide a screen for most of the year.

[32.] In relation to safety, although children and adults are used to moving back and forward across farm access tracks and are, in practice, capable of avoiding accidents, it can hardly be denied that it would be safer not to have through traffic. The risk may not be great but it does exist. The respondent, herself, said that in an ideal world it would be better to avoid this type of arrangement.

[33.] Mr Stock is aiming to create an orchard and this requires some form of deer control. The most practical and sensible way to deal with this would be by way of boundary fence with a cattle grid or gate at the entrance or entrances. It would be more secure with only one entrance. If he had to accept the existing route access he would have to take measures to control deer at both north and south ends of the track passing through his grounds. Although this can be viewed as an impediment to the enjoyment of the burdened property, it might be thought more appropriate in the context of the present dispute to treat it as a disadvantage for users of the existing route and it is convenient to address that aspect at this point. In the present case, it is likely that Mr Stock would prefer to install a grid at the north entrance to his property, point C, for his own convenience and if that worked to keep out deer it would be hard to justify a gate at the south side. We proceed on the assumption that if the old route had to be used, Mr Stock would have to install grids and that, if these were of a suitable type, properly installed, an owner of Lethy Steading would not regard them as being of any significance. However, we heard no evidence of the efficacy of grids to keep out the type of deer which might be expected in the vicinity and a need for gates cannot be entirely discounted. We recognise that if the second applicants did install gates across the existing route, the respondent or any successor to her, would be able to raise proceedings in the Sheriff Court to try to prevent this. However, the problem is a common one in country areas and although any court would have to look at the whole circumstances of any case, an occupier of Lethy Steading could not be confident of preventing gates . Put shortly, however, we do not regard the risk of the route having gates as sufficiently likely to weigh to any significant extent in our assessment.

[34.] We turn under factor (b) to consider the benefit conferred on the respondent by the existing burden. Plainly there is a benefit of access. That will be maintained by the new route. The issue comes to depend on a comparison of the two routes. This, broadly, falls into three heads: the risk of danger from sharing a road with agricultural vehicles; the extra cost of maintenance; and the risk that the new route would be more difficult to use in winter conditions. Note that in the following discussion when we refer to the respondent we include, where appropriate, members of her household and visitors.

[35.] We deal first with the risk of sharing. That is a matter which we considered we could assess for ourselves on site inspection, having regard to the evidence we heard. As noted above we think that the essential question is the safety of the new route rather than a comparison of safety issues on the two roads. We accept that the benefited proprietors will now seldom have to face oncoming traffic on the old road. However, we are satisfied that use of the new road will present no significant problems. The road is wide and straight and although there is a blind crest there is reasonable intervisibility. We are satisfied that the new road presents no danger to safety.

[36.] A separate question is the issue of inconvenience. The respondent now seldom, if ever, faces any requirement to reverse. We are satisfied that the new track is amply wide enough for two cars to pass and that most agricultural equipment would be able to pass a stationary car drawn into the side. Larger vehicles would tend to be slow moving. We do not consider the risk of encountering one to be a significant problem. The road is wide enough to allow a driver to reverse quite a distance safely. But there is a passing place just south of the crest and vehicles would be unlikely to have to go further than it. We recognise that many drivers are not confident reversing. If the new route did give rise to any significant risk of more than an occasional requirement to reverse for a short distance this would be a factor of some importance. However, in practical terms the risk only arises where a vehicle is in the hollow at the north end. If vehicles met near the crest and one was of a size which prevented them passing on the track, one might have to go back to the passing place or to the T -junction at C. If the car driver could not manage this, the agricultural driver would have to do so. Having regard to the probable frequency of such encounters, we consider the risk of significant inconvenience to be slight.

[37.] Although we accept that Ms X believes fully in the validity of the criticism she makes of the new track and that she has genuine fears that it will not stand the test of time and will be dangerous in winter, we must assess matters in light of the evidence as a whole. Where there are conflicts we must simple proceed on the balance of probabilities. The evidence of Ms X and her husband and Ms Bluett as to conditions must be assessed not only against the evidence of the applicants but against the evidence of the various experts led. None departed from the view that the new route was better than the old. While Ms X was able to point to various ways in which the old road might, arguably, be preferable, we heard nothing to detract from the overall view. We do not attempt to set out the expert evidence in full. They spoke to reports which were produced. However, we shall attempt to indicate the main points of their evidence.

[38.] In relation to local conditions, the main relevant dispute related to typical winter conditions in the hollow at X. However, there was also a contention that the ground bearing conditions were such as to render it likely that the road would collapse. Mrs Bluett described it as “soggy” but she did say that she tended to avoid that area in winter. Ms X’s husband also said it was soggy in winter. However, we heard a bit of evidence about the presence or otherwise of existing field drains in the hollow. Both Mr Cope and Mr Stock were not aware of any drains. They both said they were familiar with the area and had never found it unduly wet although it would have been chewed up by Mr Dewar’s operations and that might explain Mrs Bluett’s description. The crops at the hollow showed no sign of being in a waterlogged area although this followed a very wet summer. (We confirmed this at inspection). The respondent’s husband gave emphatic evidence to the effect there must be a field drain through the hollow. He described its probable track. He had identified the outfall to the east. On all the evidence we are satisfied that, whether due to natural or artificial drainage, the bearing conditions in the hollow present no real risk to the stability of the new track.

[39.] The second respondents had instructed two independent experts to report. Mr John Sinclair from Allen Gordon and Partners, Consultant Engineers and Mr Andrew T Wood, FRICS from Bidwells. Mr Sinclair was a BSc, MICE and structural engineer. He said he had long experience in a range of infrastructure projects including housing and road construction. He spoke to his report of 9 April 2009. He concluded that the new road was a significant improvement on the existing road. He had suggested that it could be improved further by three specific measures. He suggested construction of grass verges on both sides of the road with suitable drainage offlets on the lower side; incorporation of a passing place at the brow of the hill; and more frequent drainage pipes to prevent risk of ponding on the uphill side of the road. He suggested that these improvements would enhance the construction of a road which, however, was, as it stood, a satisfactory alternative to the existing route. He had formed the view that the road was a satisfactory alternative to the existing route at a time when the new route was only about 3 metres in width and at a time when he was not aware that there had been a membrane laid in the hollow. The membrane was a benefit although he had not considered it to be necessary. The road had been extended to 4.3 metres since his inspection. This clearly was an improvement. There was less need for a passing place. The construction of grass verges had been carried out since his report as had increased drainage. He explained that it was not normal to drain the sub-base itself. The intention in draining was to take water from one side to the other. A passing place had been constructed. It was some distance to the south of the brow of the hill. The explanation for this change was not entirely clear to us but, for reasons discussed above, we consider it adequate in practical terms.

[40.] Mr Sinclair had compared the gradients on the old and new road. He said that the steepest gradients on the old road were in the area of the bends and were up to 1 in 7.5 averaged over a 25 metre length. He had thought that the steepest gradient on the new road would be about 1 in 8 averaged over a similar length. Gradients steeper than 1 in 10 occurred on the old road over a length of about 50 metres whereas they only occurred over a length of about 30 metres on the new road. However, he had to accept that he had been considering the effect of gradients on the road as access to Lethy Steading. We were somewhat surprised when, in answer to Ms X he conceded that he had not considered the egress. He accepted that there was a short, steep gradient up to the T-junction at C, going north. Although this might have been thought to present the most obvious disadvantage of the new route, he had not addressed that specifically. However, his report included various surveys from “Douglas Land Surveys Ltd” from which gradients can be calculated.

[41.] He considered that the surface of the new road was “tight”. It could be blinded with quarry dust but there was no need for much of this. He stressed that all such farm roads required maintenance. Normal domestic use would not impose a heavy toll on the road. Farm vehicles caused more need for repairs. There was a routine need to keep any potholes filled and to clear the drainage pipes. However, considering comparative usage, he considered a 75:25 split of maintenance obligations to be reasonable,

[42.] He accepted from Ms X that the gradient going up to point C might be “6.25%” and that there might be difficulty in starting in slippery conditions if a vehicle had to stop on that slope going out from the respondents’ house. He did not dispute her suggestion that normal standards for a new road at a T- junction would not exceed “3%” but did not comment beyond saying public roads were different. We heard no direct evidence of either figure. However, Mr Sinclair appeared to accept that he had not taken account of the upslope to the junction travelling north and also that it was steeper than the steepest slope on the bends of the old track. It may be added that although on visual inspection we found that the comparative topography tended to give the impression that this part of the new route was steeper than the bends section of the old route the productions did not support this. Although a gradient expressed as 6.25% is equivalent to a rise or fall of 1 in 16, our calculation based on the Douglas surveys shows a slope of about 1 in 10 for the slope up to the T junction.

[43.] Mr Wood had inspected both routes to assess their suitability. He spoke to his report in which he concluded that the new road represented a substantial improvement to the amenity and access to Lethy Steading. He did not depart from that in cross-examination although he accepted many of the points of detail made to him suggesting that the matter was not clear cut. He stressed that he was appearing as an expert giving his own professional judgement. He noted that the road had been constructed by JM Dewar with whom he had worked on road repairs and construction and who is highly regarded for this type of construction work. It was a type of road suitable for cars, farm traffic and HGV use.

[44.] Mr Dewar had built the road and was plainly led as a witness to fact rather than an expert. However, he impressed us as a knowledgeable and careful witness. He gave evidence of his extensive experience in building roads for this type of purpose. The material used was type 1 as specified by the Department of Transport. It provided good compaction and binding. In use it formed a hard weathered running surface. He had not been building to a budget. Mr Stock had simply asked for a quotation. Mr Stock had chosen the top specification he offered. The specification was more than adequate for the purpose.

[45.] In cross-examination he accepted that the surface could be blinded with further quarry dust but said that this was not usually appropriate for roads. It was sometimes used for footpaths to provide a softer walking surface. He was aware of the concept of the CPR but did not use it. The bearing strength of any particular land was quite obvious to those in the trade. He had no concern whatever about the suitability of the land to bear this road. He did not consider that a membrane had been necessary even in the hollow area where the road had been built without excavation of much top soil. However, it enhanced the quality of the road. He accepted that the road at present showed stones as having risen to the surface. This could have been avoided by vehicles driving on all parts of the road. Drivers tended to stick to an identified line and the wheel tracks became saucered. This could easily be sorted by regrading and rolling to compact the road again. He had required to carry out no maintenance to date since building the road so it could be seen to be a low maintenance road. With proper usage it would need some attention every couple of years. It might be useful for someone to brush it every six months or so to ensure that the little stones were rolled in. There had been some adjustment to the initial cross-fall. He explained that the road now had the minimal cross-fall. It was just visible to the naked eye. Some cross-fall was necessary to allow water to run off. He accepted that it was usual to run the cross-fall against the slope for safety but only when such roads were built on steep hillsides in forestry conditions. There was no need for this with the contours in question. He explained that if the cross-fall was against the slope it would be necessary to have a drainage ditch on the uphill side. In the circumstances of the present case there would be as much risk from this as there would be of simply sliding into the field. However there was now a verge.

[46.] The road could take the heaviest agricultural vehicles. The biggest problem in terms of road maintenance was speed. Typically mail vans caused most damage. In the present case we heard evidence that the postman used the road to Lethendy Bank which was close to the respondent’s home and simply walked across to deliver mail to Lethy Steading

[47.] The respondent led evidence from Robert Smith. He was a contractor with long experience of farm and similar access roads. He spoke to his report. He concluded that the new road appeared to be of good construction. He said it had a dry bound surface which would have a “relatively high upkeep”. However, he explained that he meant relatively high by comparison with a tarmac surfaced public road. He was not making a comparison with the cost of upkeep of the old road. He was unable to comment on that. In cross-examination, he said that he had not paid so much attention to the old road but he had driven over it. He thought that it had deeper ruts and that the new track would be better. It was suitable for agricultural and residential use. He volunteered the view that it would need a lot of work to bring the old road up to anything like the same standard.

[48.] He suggested that the level of the road in the hollow should be raised. He thought the gradients might cause difficulties in snow and icy conditions and that the T‑junction could be improved by clearing vegetation to improve visibility and by appropriate signposting. He suggested that more passing places would be a good idea. He said that farm vehicles had disturbed the surface of the road at some point on the brae face. This could happen if the wheels lost traction.

[49.] The respondent had lodged an affidavit from James Haggart who said he had been an agricultural contractor for 40 years and that this had included “farm construction”. He did not profess either expertise or experience in farm road building although he described a road he had built of some 150 yards, using recycled building material, broken bricks, broken concrete and stones as bottoming. He said he was “shocked” when he saw the new road because it went in so fast. He expressed the view that shortcuts were taken but this appeared to be based only on his impression that the time taken had been short and by comparison with what he had spent on his own road. He suggested that if the new road had been under constant use, it would have “given way because it does not have any bottoming”.

[50.] He described having to clear snow from the new road one day to get in to free a car which had got stuck on the long straight section of the old road. He said his vehicle had tended to slide off the new road. He said the camber was wrong and suggested that the road should have been built with ditches on each side. We heard no explanation for Mr Haggart’s inability to attend the hearing in person. Accordingly, his evidence could not be challenged. It may be said that, whatever his actual experience, his affidavit tended to suggest that he had little practical knowledge of modern road construction using type 1 material.

[51.] Ms X’s husband also gave evidence. He had considerable experience of farm roads, mainly in the west of Scotland. He expressed concern about the building of a road through a hollow. This was something that should be avoided. However, he was fairly sure that there would be a field drain in the hollow. He gave evidence of having seen water bubbling through the track at a point to the south end which suggested a broken field drain. He expressed the view that the new road was not in a very good state. He considered that use of type 1 material on a steep brae would be highly susceptible to damage by agricultural vehicles. He had experience of tractors grinding away such a road. In his time at Lethy Steading, the only maintenance required to the old road had been caused by damage due to the deposition of slurry material. He spoke to the various problems encountered due to blackthorn. The effect of water on the old road was not as bad as on the new. There was inevitable scouring. Maintenance would regularly be required on the new road. He pointed out that if the new road did have a sealed level surface, it would be worse in ice and snow. He thought that the verges on the new road would be wholly inadequate to prevent even a light vehicle slipping off the road in winter conditions.

[52.] He expressed great concern over the risk of vulnerable people such as the old or young children being stuck in a vehicle in the hollow in snow. They had never been stuck on the old road. He spoke to their use of the road. Typically there would be about ten trips per day. They rarely used the road at night.

[53.] We heard somewhat confusing material about blinding, use of extra whin dust, wet bound surfaces and macadamised construction. It appeared, on occasions, that the witnesses were answering questions without quite understanding the sense in which the words were used. Put shortly, we are satisfied that a construction using a type 1 mix, properly compacted, can provide a sound running surface, without need for addition of blinding material. There was no evidence of flaws in ground preparation and construction. The original road may well have been of “macadamised construction” by which we understood Ms X to mean a road construction using large stones as a sub-base and smaller material on top to provide a level surface. We heard no expert evidence that this was to be preferred to the modern construction. It is plain that the former provides a more solid base but that wear or weathering of the top layer could leave a very uneven surface. We accept Ms X’s evidence that, in practice, the old road had not shown much propensity to unacceptable deterioration of the surface layer except in the area of the bends.

[54.] Ms X had serious concerns about the quality of the structure of the new route and the cost of long term maintenance. Put shortly, we are satisfied that the former are misplaced. We do accept that there will be a requirement for fairly regular maintenance with the new road although we do not accept her submission that the experts were evidence agreed that work would be needed every six months although there may have been some confusion over biennial work and there was a suggestion the brushing stones every six months or so would help get them rolled in. We heard that there had been little maintenance since the road was built but, at our inspections, we found it to provide a perfectly sound running surface. The costs of future maintenance were not addressed in any positive way but were plainly regarded by the expert witnesses as likely to be moderate. Ms X’s initial concern may have arisen from hearing of Mrs Bluett’s surprise and the fact that the road was built in a short time while she was on holiday. The fact that it was built much more quickly than the old appears to have given rise to a suspicion that it was necessarily inferior. But the weight of knowledgeable evidence did not support this. We heard that the old road took a while to build partly because Mr Cope was winning stone from a quarry as he progressed. He was not a skilled builder. We are quite satisfied that the new road is well built. It will require routine maintenance but with such maintenance it will provide a much better running surface than the old track.

[55.] Although Ms X asserted in submissions that the construction of the new track had been shown to be prone to failure in the hollow. We do not accept this. We are satisfied that there is no good reason to think it prone to failure. It may be at risk of erosion on the brae face but we are satisfied that if this happens, it can be dealt with by routine maintenance. We accept that a major problem for road maintenance is the risk of accumulation of water or the flow of water on the surface.There is no provision for drainage of the old track. However, by and large, we accept that there is no great problem of water running from the fields on to that track. There was a possible problem of water running from fields to the west of the new track. However, drains have been inserted. We accept the evidence that they can be expected to be kept clear with a spade although a pressure jet might be needed on occasion. Extra run-offs have been cut to improve cross drainage. Where any problems are identified, it will be possible to remedy them by creation of a bund and, if necessary, installation of further drainage under the road. Ms X was advised of the intention to have that done. She declined to comment on the basis that she had not had an opportunity to cross-examine witnesses in relation to it. However, we have no reason to doubt that it has now been done. We did not consider this a significant problem in any event.

[56.] We have found it difficult to reach a view as to the comparative costs of maintenance. It appears that Ms X may have been relying on the observation in Mr Smith’s report about “a relatively high upkeep”. But it turned out that his comparison was with public roads. All the experienced witnesses agreed that the old route needed maintenance. There was no attempt to put figures on the comparison. We do think that the respondent is likely to have to spend a little more on the new track than she did on the old but she will have the benefit of a shorter smoother road. We have been unable to put a figure on the difference but are satisfied that will not be a sum of any great significance.

[57.] Ms X did express her concern that Mr Cope had not proved attentive to his maintenance obligations. However, while we have not ignored this factor we can give little weight to it. Our concern is with the effect of real burdens, in other words, the regulation of the legal rights and obligations. If Mr Cope does not properly implement his legal obligations, the respondent has a right either to compel performance or to carry out work herself and claim payment of his share.

[58.] There is no doubt that the new road will not always be passable in wintery conditions. The problem is to determine not only whether it will be worse than the old road in all winter conditions, taken as a whole, but to determine whether that might tip the balance against it having regard to its advantages for most of the year. The dangers posed by the new road are largely a matter of conjecture. The respondent has not attempted to use the road and there is no body of evidence as to how use of the two routes compares over the course of a typical year.

[59.] The evidence of difficulties encountered by the respondent and her family in using the old route in winter conditions was somewhat confusing. She said they had never had any difficulty using a four-wheeled drive vehicle but also said they had never tried the road until it was cleared. They had never slipped down the slope at the bend. We understood her to say that although they had occasionally had difficulties at the bends on the way into their property, they had always been able to extricate themselves and get back down to the road. A carer had got stuck on the track. Ms X herself had never had any difficulty in the winter 2011-2012 nor, she said, had anyone driving her mother’s car, which we understood to be a small four-wheel drive made available to carers to drive her elderly mother.

[60.] We heard no evidence of her routine arrangements for having the existing track cleared in heavy snow although we heard of Mr Haggart’s visit on one occasion to rescue one vehicle. We heard no evidence of routine precautions taken when using such roads in winter conditions. It is obvious that there may be some days when uncleared roads are plainly impassable and would not be attempted; some days when conditions may require extreme care but will not impede passage; and some days when a person might find roads impassable in the middle of the journey. We proceed on the assumption a proprietor of Lethy Steading would require to have in place some provisional arrangement for a local farmer or contractor to clear the track and would travel in winter equipped to be able to dig a car out of minor snow and with sand and salt to deal with intermittent ice. We would expect all motorists in country areas now to have mobile phones and to travel with warm clothing and rugs in case of emergency. These are routine precautions and we heard no evidence to suggest that there would be anything to prevent a proprietor of Lethy Steading being so equipped. It is obvious that infirm drivers would face greater difficulty than fully able-bodied persons. This is a matter which inevitably presents difficulty in circumstances like the present. These considerations apply to both old and new routes. Different weather conditions may affect each in different ways. The fact that there may be a difficulty in the hollow on some occasions when there would not be a difficulty at the bends is not the point. There might be difficulties at the bends when the new road was easily passable. We are entirely satisfied that a user of the new track would be able to make an assessment of the risks of travel on any occasion with as much confidence as a user of the old.

[61.] We are satisfied that it would be easier to clear the new track using a typical tractor and bucket arrangement or snow plough than to clear the old. It is straight and shorter and the slopes are broadly comparable. We do not accept the contention that clearing snow on the new track is “dangerous”. We are aware that clearing snow with a tractor bucket may cause the tractor to tend to slide sideways if the snow load on the bucket is uneven. However the new route poses no danger to health and safety. It is wide enough to accommodate any typical slippage. We are satisfied that clearing snow on the steep bends would be likely to be more hazardous.

[62.] We are not satisfied that the existing track has proved serviceable in all winter conditions. This is inherently unlikely having regard to our own experience on Perthshire roads over the two bad winters. However, local conditions vary. In any event it is unlikely that Ms X intended to say this. There have been occasions when vehicles have been stuck, spoken to by Mr Haggart; and occasions when vehicles have been unable to get past the bend, spoken to by the respondent and by the nursing assistant, Mrs McCabe. There was no doubt an occasion when the respondent’s husband’s car got through the old track when he could not have made progress on the new route. However, the snow on the new route might have been undisturbed for some time. We do not know what vehicles had been up and down the old track before he tried it on that occasion. Even if he was speaking to directly comparable conditions and an exact comparison on that occasion demonstrated that the old route was clearer, we are not persuaded that a similar comparison would have produced the same result in all combinations of snow and wind conditions.

[63.] In her submissions, Ms X made various assertions which were not always well‑founded in the evidence we heard. One example was the suggestion that the road would have to meet standards required for access by a fire engine. There were suggestions that the road would not be approved. But there was no evidence of this. On the contrary, we heard evidence that the emergency services did not attempt to become involved in relation to farm roads and, in any event, that the direct access afforded by the new route would be preferable to the various bends involved in the longer old route. We have no doubt that this is so.

Conclusion

[64.] In reaching our conclusion, we have had regard to the many points of detail raised by Ms X in pleadings, questions and submissions but we see no reason not to place reliance on the assessments made by the expert witnesses who gave evidence before us. All agreed that this was a good road of sound construction perfectly adequate for the purpose. It has certain obvious advantages over the old in respect that it is shorter and cuts out the difficult bends and slopes. Ms X’s position is quite understandable. She and her family have lived with the old route. They have got used to the difficulties of the bends. They thought they could foresee the likely maintenance costs and were prepared to cope with these. Because of the speed of construction of the new road, she thought that it had been constructed as a cheap, and necessarily inferior, product. She was, and is, genuinely anxious that it will not stand the test of time; that it will give rise to increased maintenance costs falling on her and that it may present special difficulty in winter conditions.

[65.] However, we must consider the matter taking account of all the factors and having regard to the expert evidence led. We are not persuaded that the comparative dangers in winter have been shown to tip the balance to any significant extent against the new road. It will be easier to clear. We accept that, in practical terms, the respondent might face more regular maintenance bills but that these will be of modest amount. We have had to do our best to assess the appropriate sharing provisions in light of the whole evidence and our practical experience. We have come to the view that Mr Cope’s proposal that the respondent’s share of liability for the new road should be 25%, is reasonable. We consider this appropriate having regard to all the circumstances including the fact that the respondent might have been prepared to tolerate a situation where proper maintenance of the old track was not in fact carried out.

[66.] It was agreed that Mr Stock would accept conditions requiring a change in layout of the present T - junction with appropriate signage to make it clear that traffic to Lethy Steading had priority. We might be able to express this in a verbal condition but it would be preferable for there to be a plan showing the revised layout. Ideally that should be agreed between parties but we appoint Mr Stock to prepare a plan of his proposals in this regard. We need not attempt to define the extent of change. This may depend on practical details about which we have heard no evidence. However, we are satisfied that it should be possible to make it clear from the physical layout that the respondent’s access is the priority route at the junction.

[67.] Our Order varying the title condition in the terms explained above, will be issued when the fresh plan is approved.


Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 19 November 2012

Neil M Tainsh – Clerk to the Tribunal