Benjamin Mackay and Another v John Bain and 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”) to vary a servitude right of access across the front garden of a semi detached, former council house at 13 Sibell Road, Golspie. This “front access” right is in favour of the respondents who own the next door house, 14 Sibell Road. A separate, parallel rear pathway also serves both properties. The applicants wish to make their front garden more secure, improve their privacy and wish to prevent the respondents using the front access to reach their front door directly. If granted, the variation (effectively a discharge of the front access right) would restrict access for the respondents to the rear path only. The respondents oppose the application.

2. Having considered the relevant factors referred to by the parties in their written submissions and following a site inspection, the Tribunal has decided to refuse the application.

The Title Condition

3. The terms of the servitude – as they appear in a feu disposition of the application subjects by Sutherland District Council in favour of Robert Lowe and Isobel McDonald recorded in the General Register of Sasines for the County of Sutherland on 15 June 1989 (Entry 2 of the Burdens Section of Title Sheet STH499) – are as follows: “there is reserved to us and our successors a right of pedestrian access over the subjects hereby disponed to the subjects known as and forming number 14 Sibell Road, Golspie by way of the pathways tinted blue on the Title Plan”.

The Issue

4. The applicants seek variation of the title condition. In terms of Section 68 of the Act, the application is only to be granted if the Tribunal are satisfied, having regard to the factors set out in Section 100 of the Act, that it is reasonable to do so. There is no application for compensation from the respondents in terms of Section 90(7) of the Act.


5. The parties sensibly agreed, in terms of Rule 26 of the Lands Tribunal for Scotland Rules 2003, that the matter could be dealt with without a hearing, but rather by way of written submissions and a site inspection. This took place on 11 December 2012 and the applicants’ daughter and the respondents were present. Also in attendance was the applicants’ solicitor, Mr Colin Milligan, of Arthur & Carmichael, Solicitors, Dornoch. The respondents were represented in their written submissions by Ms Elizabeth B Thomson, solicitor of Anderson Shaw & Gilbert, Solicitors, Inverness

The Facts

6. The applicants Mr and Mrs Mackay purchased 13 Sibell Road in July 2007 and the house is now occupied by their daughter and her four children. The respondents, Mr and Mrs Bain, purchased 14 Sibell Road from Highland Council in 1999 and occupy it together with their three children.

7. This section of Sibell Road is a cul de sac and numbers 13 and 14 are a pair of typical semi detached, two storey council houses. However, the houses are not sited with their frontage facing the hammerhead end of Sibell road but are “end on” to the hammerhead with the gable of the applicants’ property closest to the road. Both the properties face south west and have an attractive aspect over a grassed playing field. The respondents have built a single storey extension on the south east gable of their property. There is no vehicular access to either property but two footpaths serve the subjects one running close to and parallel with the front elevation and the other running close to and parallel with the rear elevation. The front and rear footpaths serve both properties.

8. The front footpath is flagged and runs approximately 0.7m in front of the front elevation of the applicants’ property. Adjoining the footpath to the south west, the applicants have created a flagged patio in front of their house. A high privet hedge separates the front gardens and across the footpath there is a recently erected, high, close boarded gate on the applicants’ side of the boundary. There is an older, low wooden gate towards the respondents’ side of the boundary. The respondents have formed a raised patio surrounded by a low wall in front of their single storey extension. Beyond this extension is a gravelled area which gives the respondents access past the side of their extension to the rear garden and back door. From the respondents’ back door a concrete path runs close to and parallel with the rear elevation, past the rear door of the applicants’ house and thereafter through the applicants’ rear garden to the public road. The applicants have erected a 1.8m high, boarded fence close to the edge of the rear footpath which then turns south west along their boundary with the public road until it reaches the front path across which there is wooden gate of similar height.


9. The applicants seek to discharge the respondents’ right of access across the front of their property but allow the right of access to the rear to remain. They assert that the respondents’ make very little use of the front access. The applicants consider that as a result of the shared front footpath their property enjoys no privacy either to the front or rear as the pathways run within half a metre of the windows of the house. The applicants’ daughter has four young children and she considers she is unable to leave them playing in their own garden as the gates can be left open by the respondents. This has created tension between the neighbours and relations between them are under constant strain.

10. The applicants have erected a fence around the boundaries of their front garden but security for children is still ineffective if gates are left open. The applicants submit it is reasonable to grant the application since there is already a right of access over the rear path which is parallel to and only a few metres from the front pathway. The front path is little used by the respondents and confers little benefit on them and, as the applicants cannot create a private or secure area of garden directly accessible to the house for children or pets, the existing title condition significantly impedes their enjoyment of the burdened property.

11. The applicants are considering seeking permission for the erection of a small conservatory to the front of their house but would be unable to do so if the existing right of access remains in place.

12. The respondents submit that the application should be refused. They consider that the loss of the access to the front of their property would result in considerable inconvenience, as was previously experienced when access was temporarily lost due to a gate, erected by the applicants, which was kept locked. The respondents consider that they do respect the privacy of the applicants and reject the assertion that they leave gates open. They argue that the applicants are free to erect a fence around the grassed area of their garden if they require a safe area in which children can play.

13. The respondents note that the applicants would have been aware of the title condition when they acquired their property and also observe that there had been no prior negotiation or intimation by the applicants that they wished to vary the title condition.

14. In terms of Section 100 the respondents consider that (a) there has been no change in circumstances since the access was created; (b) it is highly beneficial in terms of access and safety with minimal burden on the applicants; (c) there are alternative solutions open to the applicants who could erect a fence around the grassed area of their garden to ensure safety and privacy without affecting the respondents’ access; (e) the access right was created 23 years ago and has continued since without interruption; (f ) the purpose of the title condition is to afford the benefited property with convenient rights of pedestrian access; (g) there has been no intimation of any planning application in respect of improvements or anticipated building works to the applicants’ property; and (h) there has been no offer of compensation.

15. The respondents consider the application should be refused and an award of expenses made in their favour in terms of Section 103 of the Act.

Tribunal’s Consideration

16. For the applicants to succeed, the Tribunal requires to be satisfied that their application is reasonable having regard to the list of statutory factors in so far as these have any application to the circumstances. We have to consider the various factors set out in Section 100 of the Act and weigh up the issue of reasonableness as a whole – Section 98.

17. There is clearly a breakdown in the relationship between the parties which is regrettable; it is, of course, not our function to apportion blame. We should look objectively at the layout of the two properties, their front and rear accesses and in particular at the respondents’ use of the front access which the applicants wish to revoke. We should have regard to the situation as it might be viewed by reasonable proprietors of each property rather than having regard to the subjective wishes or personal circumstances of either the applicants or the respondents.

18. Turning specifically to the statutory factors, we often look firstly at the purpose of the title condition when it was created (factor (f)). This was clearly to provide access to No 14. Access was provided to the rear with a pathway serving the back door of both houses and which can be used to access the rear gardens and to enable wheelie bins to be taken directly to the kerbside for collection. The clear purpose of the front pathway is to access the front doors of both houses and is doubtless used by visitors and residents alike. In the usual way it complements the rear pathway.

19. We do not consider there has been any material change in circumstances (factor (a)) in relation to either property. We note that the respondents have built an extension and that the applicants have partially fenced their garden but we do not consider these to be material. Nor do we consider the fact that the occupier of the applicants’ property has young children to be relevant in a case of this nature.

20. As far as the extent of benefit to the benefited property is concerned (factor (b)) it does seem to us that the front access is of real benefit to the respondents. To deprive owners of access to the front door of their property, confining them to the back seems somewhat unrealistic. The extent of use of the front door is disputed. The applicants suggest that it is rarely used and stopping its use by the respondents would be of little significance to them. This suggestion is rejected by the respondents who argue that they use it regularly. Viewing the matter objectively it must be of real benefit for a householder to have direct access to his front door. Gates have been erected by the applicants across the path close to the mutual boundary and adjoining the public footpath but these can be opened by the respondents.

21. As far as the extent of the burden on the burdened property (factor (c)), is concerned, we think that this is limited. The layout of the property is unusual with the gable end to the street but that has been a feature of the properties from the date of construction, as have the two parallel paths along the front and rear elevations. The front path does pass close to the front ground floor window of the applicants’ house and there will inevitably be a degree of reduced privacy and this may impede, to a small degree, the applicants’ enjoyment of their property. However, it also has to be remembered that feature was self-evident when the applicants acquired the property. There is also inevitably the possibility that garden gates are left open which may present a hazard if small children are playing in the garden. It is preferable for proprietors to have, when it is practical, complete control of their garden but in this case revocation of the right to use the front access would be a significantly greater impediment on the respondents than the impact the footpath has on the privacy of the applicants. We find it difficult to reconcile the applicants’ position that the front footpath is “very little used” with their suggestion that there is “no privacy” and that gates are “often left open”.

22. Factor (g), whether the condition prevents a use for which there is consent also favours the respondents’ case. No application for change to the front of the applicants’ property has been made and no planning application has been submitted for a conservatory extension.

23. Factor (h) No offer of compensation has been made by the applicants.

24. Factor (j) any other factor. In their application the applicants indicate that “they are considering seeking permission for the erection of a small conservatory to the front of the house in the future but would be unable to do so if the right of access of the front pathway is in force”. At present there is no identifiable proposal but if one is made in future, perhaps involving some proposed re-routing of the path, that would require the Tribunal to consider a new application – but only in the event, of course, that a variation of the route of the access path was not agreed to by the respondents. However, as there is no current proposal we do not consider this suggestion to be material to our present consideration.

25. Both properties are occupied by families and the safety and security of children playing outside is a perfectly reasonable concern of any parent but we have to balance the interests of the two proprietors. Depriving the respondents of their direct access to the front door of their property is in our view unreasonable and could have an adverse impact on the value of their house. The rear access is inferior in terms of its amenity and to suggest that the respondents or a future owner of their property should only be able to access their front door using the rear access which would in practice mean walking past the back door of both properties then walking round the gable of their extension to access the front garden and then the front door seems unreasonable. As the respondents point out, the applicants can erect addition fencing if they wish around parts of the garden to create secure areas in which children can play.

26. Weighing all this up we are of the clear view that the balance of reasonableness favours the respondents. The servitude is burdensome in a limited way on the applicants’ property but in our view the loss of the direct access to the front door of No. 14 would adversely affect the respondents’ enjoyment of their property to a very considerable degree. The application to discharge the respondents’ right to use the front footpath is accordingly refused.

27. During the course of the written pleadings, the respondents effectively moved the Tribunal to make an award of expenses in their favour under Section 103 of the Act. As the applicants have not had the opportunity of responding to that motion in the light of the refusal of the application, we will reserve the question meantime. Parties will be aware that the Tribunal is required in terms of section 103 to have regard to success when making any order as to expenses. Accordingly, we would strongly encourage parties to agree this issue without the need for a Tribunal determination. In the event that they are unable to do so, the Tribunal will consider brief written submissions from both sides, in accordance with our normal practice.

Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 29 January 2013

Neil M Tainsh – Clerk to the Tribunal