OPINION

Branziet Investments v Paul and Heather Anderson

Introduction and Summary

[1] This is an application under the Title Conditions (Scotland) Act 2003 (“the Act”) to vary two title conditions. The burdened subjects are a former farm steading area with dilapidated buildings which the applicants intend to develop as four dwellinghouses. The respondents are the neighbouring owners of the former farmhouse with some adjoining land. Title to the farmhouse was separated in 1968, when the conditions were created. The first condition was a real burden which restricts building. Parties agreed on the terms of a variation of this on the morning of the hearing, making it unnecessary for the Tribunal to consider that further. The second condition is a servitude right of access in favour of the respondents over part of a driveway and over a courtyard area. The applicants sought a variation restricting the extent of the access area so as to enable them to add small garden areas on that side of the proposed houses. The respondents were prepared to restrict the area slightly but parties were unable to agree on that variation.

[2] Following the hearing and a site inspection the Tribunal have decided, applying the statutory test for such applications, to allow a variation reducing the access area by somewhat more than the respondents offered but less than the applicants sought. Taking account of the particular position on the ground, we concluded that the applicants’ proposed restriction to a width of 5m, while appropriate and reasonable for the central section of this access route, was insufficient at both ends. The section at the west end, near the right angle bend where this access meets and joins the access driveway from the road, should not be reduced in width; and a section around the respondents’ main gate at the east end should be reduced to 7m, not 5m, wide, so as to allow (as the present right does) a turning or manoeuvring area outside the gate for larger vehicles which may reasonably be expected to use this access. The applicants will require to lodge a detailed plan reflecting our decision. We are also allowing a short period in which parties might agree, or either of them might propose, any slight alteration in the shape of the area outside the respondents’ gate.

[3] The applicants suggested, in support of their proposed restriction of the whole route to a width of 5m, that they would consent (in terms of Section 90(5)(a) of the Act) to the imposition of a burden restricting vehicular use of this driveway by them and their successors to necessary deliveries to the rear of the proposed houses (which will have a substantial access driveway and parking on the opposite side, away from the respondents’ property). Although we are inclined to think that this will still be appropriate in the light of our decision, we consider that as we are not granting the application as sought, we should allow both parties an opportunity to make a further submission on this proposed burden.

[4] The details of this further procedure are set out in Paras [39] to [42] below.

The Title Condition

[5] A Disposition of the respondents’ subjects (now registered as GLA130709) by John Gillespie to The Leeds Permanent Building Society and others recorded in the General Register of Sasines (Glasgow) on 19th December 1968 (noted in the Burdens Section of the applicants’ registered title GLA205622) conveyed inter alia:-

“(Second) a servitude right of access for both vehicles and pedestrians to the subjects hereby disponed over the solum of the access roads” (“tinted yellow on” the respondents’ Land Certificate Title Plan)”

This access right is partly enjoyed jointly by the applicants and the respondents over subjects owned by a third party, and partly a right of access by the respondents over a section on the north side of the applicants’ property (tinted blue on the applicants’ Title Plan). The present application concerns the latter part only.

Procedure

[6] The applicants are a partnership and its partners Calum Wilson, Colin McCarney and Kevin Gray. They applied, as owners of the subjects known as Easter Auchinloch, Lenzie, under section 90(1)(a)(i) of the Act. The respondents, as owners of subjects known as Easter Auchinloch Farm, Burnbrae Road, opposed the application , although they indicated in their representations a willingness to reduce the access area slightly. At the oral hearing, the applicants were not legally represented. Mr Wilson appeared on their behalf and gave evidence. The respondents were represented by Mr Grant of Messrs Mitchells Roberton, Solicitors, Glasgow, who called the respondent Mr Anderson to give evidence. Both sides also lodged productions, and agreed a joint statement of undisputed facts. The Tribunal inspected the site, in a thunderstorm!

[7] The applicants sought a reduction of the access area to a width of 5m, to enable them to provide areas of private garden ground on that side of the proposed houses. They offered to restrict their and their successors’ vehicular use of the (reduced) access area to essential deliveries, although they did not proffer any specific wording of such a burden, to which they would require to consent in terms of Section 90(5)(a). The respondents were prepared to give up their right of access over a 1m strip (which they indicated at the hearing might be increased to up to 2m) around the steading buildings.

Authority referred to:-

ATD Developments Limited v Weir and Hettrick LTS/TC/2010/03, 14 September 2010

The Facts

[8] On the basis of the parties’ agreement, the oral and documentary evidence and submissions, and our site inspection, we found the following facts established.

[9] The applicants are a development company. They purchased the burdened property, known as Easter Auchinloch, in October 2012. It comprises an area of former agricultural land with an old steading building laid out in an approximate U shape. The steading buildings are now in a very poor state of repair and uninhabitable. The benefited property, known as Easter Auchinloch Farm and purchased by the respondents in 1997, is a domestic dwelling with substantial garden ground. The respondents own additional land (on a separate registered title, GLA200220) running to the north east of their property and alongside the newly constructed Kirkintilloch bypass to the east, which at this point runs in a cutting. This additional land is accessed from Easter Auchinloch Farm and is used for agricultural purposes.

[10] Both the benefited and the burdened property have an access right (“the shared access”) from the public road, Burnbrae Road, over a private made up road which runs in a near north/south direction along the western boundary of the benefited property. There is a timber fence, approximately 1.8m high, reducing to approximately 1.2m high, along this boundary. The distance between this fence and the stock proof fence on the western side of this access road is on average around 5.4m. Of this, 4.4m has been surfaced in tarmacadam. The balance is compacted and dressed in stone chips and is capable of use by vehicles if required. The current width of this access road would allow two cars to pass but some use of the gravelled area would in practice be required and the vehicles would need to pass slowly and with care. A large commercial vehicle using the shared access road would require a car or other vehicle to wait until it had emerged from the shared road. Site visibility from the public road, which is generally at a higher level, is good.

[11] The title condition is a further right of access (“the servitude access”) in favour of the respondents, from the shared access road on the western boundary over the area of land, at right angles to the common access road, between the former steading buildings in the applicants’ property and the northern boundary of the respondents’ property. This area has been quite extensively surfaced in tarmacadam at the respondents’ cost. The first section of approximately 16m of driveway is approximately 7m wide, leading to a small courtyard area, approximately 35m long, which, due to the configuration of the steading buildings, extends in width from a minimum of 6.5 metres to a maximum of 11 metres. The access right covers the entire area between the respondents’ boundary and the outer walls of the former steading, and also extends about 5.85 metres beyond the respondents’ eastmost gatepost which is close to the end of the boundary of the benefited subjects. This boundary is mainly marked by a stone wall (apparently within the respondents’ property) approx. 1m high and, at its widest at the base, 0.4m wide. Temporary protective fencing has been erected around the dilapidated steading buildings, reducing the servitude access outside these buildings by approximately 1 metre.

[12] No other property (apart from the respondents’ additional agricultural land) takes access from the servitude access route.

[13] The principal access to the respondents’ benefited property is by way of a metal gate, approximately 4.52m wide, positioned at the eastern end of the northern boundary. In addition there is a small gate for pedestrian use at about the midway point in the stone wall, with a pathway leading to the front door of the respondents’ house. The refuse bins are outside this pedestrian gate within the servitude area. There is also a gate, apparently not used for some time, giving access to a double garage at the western end of the respondents’ boundary, also using the servitude access.

[14] On the ground, the junction of the shared access and the servitude access is at 90 degrees, delineated by the timber fence and the stone boundary wall. The respondents’ fence at this junction has however been erected outwith their title boundary, which is at this point rounded rather than angled. Some large vehicles would not be able to make this turn without encroaching onto ground outwith the shared and servitude access areas.

[15] The land inside the metal gate comprising the principal access to the respondents’ property has been laid out as car parking and is surfaced. The area available is approximately 21m by 9.5m. There are some small agricultural buildings as well as a large tree on the eastern side of the car park. Cars and small vehicles can drive in to this parking area and (subject to the number of vehicles parked not being excessive) execute a 3 point turn and drive out forwards. Larger commercial and some agricultural vehicles may have difficulty turning in this area.

[16] The layout of the public roads around the properties has been much altered by the recent construction of the M80 extension and the resultant amendments to the adjacent road network.

[17] The applicants obtained full planning permission in 2012 to convert the existing steading into four residential units. The conditions imposed related to the requirement to retain the existing buildings, emphasising that it was not for a new build development. Private car parking will be provided within each garden of the 4 units, and also visitor parking, all to the north of the steading buildings and served by the continuation of the shared access road north into the applicants’ land . The development will occupy only part of the land associated with the former steading. The plans for which approval has been granted show no garden ground in the area of the courtyard.

[18] The respondents’ property is registered as a smallholding. They keep a few pigs and some poultry. They bring in feed for their stock on average every three months and remove stock for slaughter once per year. A small haulage business was formerly run by the respondents with seven 7.5 ton vans. The respondents’ property was registered with VOSA and the vehicles were registered there. This business has ceased.

[19] Until approximately two years ago part of the steading was occupied as a house. A car was regularly parked in the courtyard by this occupier without objection. The respondents parked a large static caravan for a period in the courtyard area, opposite their gate, thus restricting the width of the servitude access at that point by nearly half.

[20] Two cars can very easily pass at the narrowest point (between the westmost building and the stone boundary wall) which averages just under 7 m in width (currently, with the heras fencing, 6m). Larger cars can swing into the respondents’ property through the existing gate and exit into the servitude area within a width of 5 m.

[21] The Department of Environment and the Department of Transport issue design bulletins from time to time. Bulletin 32 covers layout considerations for residential roads and footpaths. The introduction recommends a “corporate” approach striking a balance between housing, planning and highway objectives and allows for a wide range of options in design. It is mainly directed at designers involved in development of modern housing estates and provides for different standards depending on the number of residential units in any area. There are 3 categories referred to, the smallest being “up to 25 residential units” with the largest from 50 to 300 units. Based on their “standard” dimensions for a private car, a maximum distance of 5.78 metres plus an “overhang” of 0.350 metres is required for a vehicle to emerge from a line at right angles to that line and to then turn 90 degrees. The bulletin depicts a car having a width of 1.72 metres. A reduced distance would apply if the emerging vehicle were able to cross at an angle towards its intended direction. There is extra width available at the respondents’ gate for cars and small commercial vehicles to commence their turn before emerging from the respondents’ property.

[22] Any new units created from the existing steading, with windows at both ground and upper level, as proposed, overlooking the servitude access area, would suffer some loss of privacy if the full area of the courtyard remained subject to the respondents’ right of access.

Parties’ Submissions

[23] On the basis of their application and adjustments answering the respondents’ objections, in so far as relating to the access right, and Mr Wilson’s oral presentation at the hearing, the applicants’ position was essentially that their proposed reduction of the servitude access to a 5m strip along the respondents’ boundary, along with giving the respondents in effect exclusive access, would allow the applicants to form small rear gardens to the new properties and introduce some privacy but would not impede the respondents’ access in any way or otherwise impact on their property. Reference was made to the roads design guidelines. A width of 5m turning into a gateway of 7m was ample. The area would no longer be required by the burdened proprietors for parking or visitor parking. The boundaries of the properties would be better defined. The applicants did not consider there would be any need for footpaths, in the interests of safety, in the case of a 5m road serving one property. It was not a question of the value of the burdened property although, if the application were successful, that would probably be increased. If only 1m, or 2m, were taken out, fencing within the new gardens would restrict light. Mr Wilson indicated that 1.5m would be required at the protruding gable, for necessary maintenance access, but then accepted from the Tribunal that the applicants could not in fact be prevented from doing work there provided it did not interfere with the exercise of access. (The applicants’ references in the written material to changes of circumstances and the length of time since the title condition was created, appeared to relate to the building restriction rather than the access right.)

[24] The respondents’ position, again based on their written representations, as adjusted, and the oral submissions, was basically that the reduction sought in the breadth of the access would restrict the right for many of the purposes for which it had been, was been and might reasonably be anticipated to be used, in particular room for two vehicles to pass, room for large vehicles to turn into the respondents’ gate and sufficient space for pedestrians to use the access even when vehicles were moving. The purpose of the title condition was clearly to afford access to the benefited property. Vehicular access to a property of this type encompassed larger vehicles, tractors, lorries, etc. There had been evidence of safety concerns. The extent of the benefit was essentially self-evident. The applicants’ planning permission and architects’ drawings did not show the proposed garden areas: the applicants had not demonstrated any material impediment to the burdened property. The length of time elapsed was not relevant and there was no material change of circumstances, nor did the planning permission bear upon the access right. The applicants had failed to discharge the onus on them and the appropriate disposal would be to reduce the access area by only 1m, or perhaps 2m.

Tribunal’s Consideration

[25] As indicated above, we do not require to consider the issues about the building restriction and the agreed variation of that burden will be incorporated into the Tribunal’s order disposing of this application.

[26] The approach which the Tribunal requires to take in an application such as this application to vary a servitude access right is set out in Sections 98(a) and 100 of the Act. The applicants have to satisfy us, having regard to a list of factors set out in Section 100, that it is reasonable to grant the application. We may of course grant it to only a limited extent and can therefore in this case consider varying the access right as sought by the applicants, or only to the extent conceded by the respondents, or to an extent in between their positions. We have to consider the material available to us on the Section 100 factors, including “any other factor which the Lands Tribunal consider to be material”, and then decide the issue of reasonableness.

[27] It may be said that in applications to vary access rights the question whether the benefited proprietors will be left with a reasonable equivalent of what they currently enjoy is normally a prime consideration in the absence of changes of circumstances in relation to their access requirements. We start with a short general assessment of the position in this case, before turning to the particular statutory factors.

[28] The applicants’ wish to have the access right curtailed appeared to us to stem from a reasonable wish, as part of their proposed residential development at this location, to use part of their land to add some small private garden space at the back of the houses (although there is a legitimate question, since their evidence was not strong on this point, as to the extent or seriousness of the problem for them if they were unable to do so). Further, it seemed to us that Mr Wilson was making a genuine attempt to assess reasonably the width of access which the respondents reasonably require. We would, however, point out that he really did not address the position at the west end of the servitude access, where it seemed to us that because of the right angle bend (admittedly created by the respondents themselves) the respondents may well reasonably require, for larger vehicles, the full width of the servitude access. The applicants’ proposals appear to envisage that area as a part of the vehicular access to the new houses rather than garden space and no reason has been shown to reduce the servitude access at that point.

[29] As far as the respondents’ position is concerned, access to their property, in particular the vehicular access at the east end of the servitude route, has been arranged on the basis of the servitude right. They had at their expense tarmacced much (though not all) of the courtyard area, and they had placed the gate at a particular point and developed the ground inside. A degree of turning and manoeuvring space has been developed in the access area, so that it is more than just a physical route to their property. The shape of the tarmacced area, very roughly an oval shape, did seem to us to give some indication of the area in which turning was to be anticipated. These steps were in our view taken in reasonable reliance on the right. We also accept from the nature of the respondents’ property – a substantial country property with a smallholding – that some larger agricultural vehicles, perhaps using trailers, might be expected to be present. However, we did note the natural constraints which are imposed on this access road by the limited width of the common access road by which it is reached and the right-angled bend at the junction of the two access roads. Very large vehicles utilising only the width of the access rights would not in fact be able to make use of the servitude access. There was also uncontradicted evidence that the respondents for some period of time had a large static caravan parked opposite their gate, in an area which they claim is required to enable them to exercise the access right.

[30] Mr Anderson showed a tendency to regard the courtyard area as his own property. Indeed, he said so in his evidence. That is a misconception of the position: the land belongs to the applicants. The right confers an access amenity, but not amenity in a more general sense. We have also to record that in his attempts to justify the full width which he said was required to make use of the right, Mr Anderson was prone to considerable exaggeration and erroneous measurements. He at one point visualised two cars passing, two children and the arrival of a Royal Mail van, apparently all at the same point in the road. His evidence about cars passing and the width of his own car was shown to be wrong when he drove out past our car with ease although cones indicating the 5 metre width sought by the applicants were in place. He gave wrong figures and failed to take account of the width of the opening into which vehicles would be turning. So we placed no reliance on his detailed evidence on distances, widths, etc. required.

[31] It is often appropriate to start consideration of the statutory factors with the purpose of the title condition (factor (f)). It is, of course, obviously to provide access, including vehicular access to the respondents’ property, but it may also be noted that the right extends the full distance of one boundary of the property, there already being access along the western boundary. In other words, the respondents could develop access at a point of their choosing along the boundary, so that it is entirely consistent with the purpose for them (or their predecessors) to have chosen to take their main vehicular access at the widest point, off the courtyard.

[32] Consideration, from the point of view of reasonableness, of the extent to which the condition confers benefit on the respondents’ property (factor (b)), comes appropriately next. As already indicated, the servitude access is more than simply a way of reaching the respondents’ land, because the respondents (or their predecessors) have, in enjoyment of the right, developed a vehicle gate into their property so as to take advantage of the servitude access. The right thus gives the benefit of vehicles, including some larger vehicles (but not the very large vehicles which could not negotiate the 90 degree turn on the basis of the access rights as they stand), being able not only to enter and leave the respondents’ property easily but also being able to manoeuvre and turn outside the gate. Conversely, the right does not at present give such benefits along the whole length of the servitude access: while the respondents might in theory develop a similar entrance anywhere on the boundary along which the servitude access runs, they have done so only at the one point. In other words, it is reasonable to take account of what has been developed and is being enjoyed but not, in the absence of any indication of further access requirements, of what has not.

[33] As to the extent to which the condition impedes enjoyment of the applicants’ burdened property (factor (c)), the applicants have shown that the burden goes further than simply preventing them from using the area of the servitude inconsistently. We accept Mr Wilson’s evidence that they wish to use some of this land to create small private back garden areas for the proposed houses. As the development is required to use the existing buildings, its footprint could not be moved back. The fact that the planning drawings produced do not show such use (possibly because it would have been inconsistent with the present servitude access) means that the applicants cannot prey in aid factor (g) (planning consent for a use prevented by the title condition). Further, they have not established any effect on the value of their property if they cannot make this use of their land – Mr Wilson’s evidence wavered slightly on that point, but there is certainly no expert evidence to that effect. However, we accept that there would be some benefit to this development to have such rear garden areas.

[34] There is a change of circumstances, in the character of the burdened property, since the title condition was created (factor (a)). It seems reasonable to conclude that in 1968 the area of the servitude was simply part of the farmyard, so that its dilapidated state now makes it a natural candidate for the type of development proposed. There might have been no real reason in 1968 to limit the ambit of the servitude access. However, it has also to be noted that the building restriction created at the same time does indicate some consideration of the possibility of additional building of some sort. The recent reorganisation of the public roads in the vicinity of these properties does not seem to us to be of any relevance. This factor, and also the age of the title condition (factor (e)) were not particularly pressed by the appellants, but neither of them points against the reasonableness of the application.

[35] The issue of willingness to pay compensation (factor (h)) has not been relied on by either party and does not appear to us to have any bearing on the reasonableness of this application. Factors (d) and (i) do not apply here. Under factor (j), any other material factor, reference might be made to the respondents’ expenditure on tarmaccing parts of the service area, but that is really already part of our consideration, under factor (b) above.

[36] Drawing these considerations together in consideration of the overall test of reasonableness, we refer principally to (f), (b) and (c). This servitude clearly has a purpose which remains valid, and we have indicated our assessment of the extent of benefit from it. It burdens the applicants’ enjoyment of their property by preventing them from developing this part of their land as garden areas. There is a balance between benefit and burden, but the main consideration appears to us to be the extent of ground which the respondents reasonably need to continue to enjoy the benefit of the servitude. In our view, narrowing the area at the west end has not been justified, there being some benefit to the respondents and no demonstrable curtailment of the applicants’ property in that area. In the central stretch of roadway, we consider 5m entirely adequate for the respondents’ access, the excess over that representing unnecessary curtailment of the applicants’ proposed use. At the east end, there does appear to us to be a reasonable requirement for more than 5m, although that will limit the size of the proposed garden areas at that end. Balancing those considerations, and accepting the respondents’ reasonable requirement for some turning space in that area, we have decided that it would be reasonable to reduce the width, not to 5m but to 7m, from a point 5m before the existing gatepost, i.e. the west end of the gate opening, to a point 2m past the east end of the gate opening, i.e. providing a rectangular area of 7m by approximately 11.5m (5 + 4.5 (width of gate opening) + 2) around the vehicle entrance to the respondents’ property.

[37] Our focus, in relation to the width of the servitude access, has been on vehicular access. Mr Anderson also raised a question as to pedestrian, in particular, child, safety. That could of course be a significant issue, but we do not think that it would be a material concern in relation to a road width of 5m at this particular rural location, where the visibility is good and only one property is served by this access road. We might have a different view of this if it appeared that variation of the servitude access would lead to larger vehicles having to reverse along this road. No doubt the applicants, and quite possibly the planners, will have in mind the possibility of creating pedestrian access over the area now excluded from the access right, whether inside or outside any fence which the applicants may choose to erect.

[38] Our decision leaves strips available for garden space of 3.5m or slightly more at the east end and north side of this part of the courtyard, widening to around 5.5m beside the 5m roadway except where the two steading buildings jut out. The access area will remain the same as at present from the west side of the steading building to the point where it meets the shared access area at the west end, i.e. (as we understand the Land Certificate title plans), following an extended line westwards from the line of the south wall of the westmost steading building.

[39] It is the applicants’ responsibility to prepare a detailed plan showing the reduced access area for incorporation into the Tribunal’s Order and then submission to the Keeper of the Registers for noting in the two registered titles. However, as indicated above, we have it in mind that parties, hopefully by agreement, might in the light of our decision consider some alteration of the shape of the access, particularly perhaps at the east end in the vicinity of the gate. On the ground at present, an approximate partial oval shape of area tarmacced and used by vehicles is apparent. If parties agreed to reproduce a shape like that, based on our decision to preserve a larger area of access at that point, the plan to be submitted by the applicants could show the alteration. In the absence of such agreement, either or both may, if they wish, make a further written submission, restricted to the shape of the access area.

[40] The other matter on which we think parties should have the opportunity to comment further in the light of our decision, which is of course between the two parties’ positions, is the proposed use burden on the applicants’ property, restricting use by the applicants of the servitude area to access by emergency vehicles and for occasional use for deliveries or uplifting of goods or necessary access by maintenance vehicles and prohibiting use for parking. Section 90(5)(a) allows such an order to be made only with the applicants’ consent (so that an application may be refused if the applicant does not consent). The applicants did indicate their willingness to accept such restriction and founded on it in support of the reasonableness of the application, but as we are not granting the application to the full extent, they should have the opportunity of indicating whether they still consent to such a burden. If they are not so willing, the respondents should be allowed to make a submission as to what, if any, effect, this should have on the application. Our provisional view, subject of course to any such submissions, is that this would be an appropriate provision which would reduce the potential for conflict at this location.

[41] Finally, we did hear, and note, parties’ submissions on expenses at the end of the hearing. They should each now also confirm their positions on expenses, adding any further submissions which they consider necessary in the light of our decision. It is clear that the applicants have basically succeeded, although not to the full extent sought, in their application in relation to the servitude access, and have apparently ‘beaten’ the position proffered by the respondents on that matter. They also had a measure of success in relation to the building restriction, although again not precisely as sought.

[42] Each party will have 28 days to make any submissions on the matters set out in the preceding three paragraphs.


Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 26 August 2013

Neil M Tainsh – Clerk to the Tribunal