Pollacchi v Campbell

[1] This is an application for variation of the route of a right of access. The applicants would like to change the route so that it would run to the west side of their ground rather than running through it. This would allow them to fence off the rest of their land giving them an enclosed area which they would be able to use as an extension of their garden. It is unnecessary to attempt a detailed description of the rather complicated physical layout of the properties and the access routes under discussion. The subjects lie at the back of tenement property numbered 27 to 35 Nelson Street, Largs. Access is through a covered pend. The access route runs in what is virtually a straight line north along the side of the applicants’ house and across their tarmac open space to meet the boundary of the benefited subjects. There are no physical features marking either the line of the access as it crosses the applicants’ subjects or the line of the boundary. The decision turns largely on an assessment of whether and to what extent the proposed route would create difficulties for users of the benefited subjects by comparison with proper use of the existing route.

[2] We heard evidence and submissions in Edinburgh on 6 March 2014. Mr Pollacchi appeared on behalf of the applicants. He gave evidence and led evidence from his wife. Mrs Campbell appeared on her own behalf and led evidence from her tenant, Alfie Hume.

Statutory material

Title Conditions (Scotland) Act 2003, Part 9.

General background

[3] As the parties were representing themselves and also giving evidence, the facts emerged in a slightly confused fashion. We heard evidence on a variety of matters. It became clear that there were various minor points of dispute ranging from issues over the positioning of the applicants’ climbing plants to misunderstandings over the applicants’ practice of renting out parking spaces within their ground. We did not attempt to clarify all the detail but concentrated on material with a bearing on the factors we had to assess in terms of sec 100 of the 2003 Act. It was apparent that there was a wish on both sides to maintain good neighbourly relationships. We were satisfied that each side expressed their views frankly. Each had some difficulty in understanding the other’s attitude to the present dispute but there seemed to be a recognition that any other issues should be seen as problems to be resolved rather than matters to be fought over.

[4] The applicants submitted well produced plans showing the existing and proposed access routes. The accuracy of the plans in representing the location and dimensions of the existing access route was not disputed before us and measurements made on inspection appeared consistent with the plans. One plan provided a “swept path” diagram to support the applicants’ assertions that the alternative route was viable from the point of view of towing caravans into the respondent’s property. However, it showed only the entry path of the smaller van. There is no doubt that access was tight at the proposed S bend and the plan did not show the egress. There was no attempt by either party to provide any direct evidence of the movements of such a van and car within the yard. The applicants’ swept path plan simply showed the car in the dead end behind the building, still attached to the van.

[5] The main restriction on the types of vehicles which can use the benefited subjects is created by the covered pend. The pend itself is some 8000 mm long and is 3000 mm wide but there is a metal gate within the pend and the gate and gate posts restrict the effective width to 2800 mm. The main difficulty in assessing the impact of the proposed change is that all the relevant areas are open ground at present. Vehicles using the access route can easily move on to adjoining ground to manoeuvre or to avoid oncoming traffic. It is necessary to consider what the position would be if Mr and Mrs Pollacchi were to insist that vehicles did not encroach beyond the defined route. The scope for vehicles such as caravans being manoeuvred within the benefited subjects is plainly very limited.

[6] The applicants produced various photographs as evidence of the use of parts of the applicants’ hard-standing outwith the access track, by the respondent’s tenant, Mr Hume, for parking and repairing of vehicles There had been some contact with Mr Hume over the issue but Mr and Mrs Pollacchi had not wanted to complain every time that it occurred. Mr Pollacchi accepted that he had not spoken to Mrs Campbell directly about her tenant’s encroachment but said she had been advised through his solicitor that the applicants did not like this happening. Mr Pollacchi recognised that the issue of use of their land in this way could be stopped, formally by a court order, or directly by erecting a fence or even a row of stones along the edge of the access route. But he did not want to destroy relationships. He thought that providing a separate route to the yard would avoid conflict. For her part, Mrs Campbell had not really recognised that Mr Pollacchi saw encroachment as a problem. Mr Hume in his evidence stated that he had never been approached concerning his use of areas beyond the access strip for parking and maintenance work. He said that the photographs gave a misleading impression. They had been taken over a period of time. Over the last year he had not been at the yard very often. He explained each of the photographs. In most cases the cars in the photographs were either his own or his son’s. In one instance work was being done by way of cleaning a car belonging to one of Mr Pollacchi’s parking tenants. Mr Hume did not conduct any form of business from the subjects. He would occasionally carry out car repair work for friends. He said he would in future keep off the applicants’ land.

[7] On the issue of use of the benefited property in the evenings or at night, Mr Hume said that he had rarely been there for the last year due to ill health. Such use was only by his family. He used the property for storage of furniture and motor bikes in the building and a quad bike and cars and caravans and trailers in the yard. There were not always two caravans on site as the space was limited. Very occasionally there had been overnight use of one of the caravans.

[8] Mr Hume stated that it was difficult enough on the existing arrangements to achieve access with the bigger of his two caravans. But it was possible because the access was in a straight line. He was not impressed by the swept path plans saying that towing is difficult in practice and achieving precisely the required turn would be almost impossible. He accepted that he had been in the habit of using the applicants’ ground beyond the access strip to allow vehicles to turn but he was confident that it would be possible to park both his caravans and to carry out the necessary manoeuvring within Mrs Campbell’s ground. If the big caravan was to be parked there, the car would be detached and the van moved by hand. He needed assistance to do this with the big van which was a four wheeled vehicle. Mr Hume explained that he also used a long trailer that had a greater overall length than the big caravan. It was significantly longer than the smaller caravan used in the swept path analysis.

[9] At the site inspection we noted that a short fence had been erected at the applicants’ door. This had not been shown on any of the plans and nothing had been made of it at the hearing. It obstructs the existing access route but it is clear that most vehicles take advantage of a neighbour’s parking area to avoid any difficulty. At inspection we simply noted that it seemed to serve a useful purpose of protecting people emerging from the house from risk from passing vehicles. We recognised that if the neighbour’s parking area was not available, Mrs Campbell could insist on removal of the fence to allow use of the whole straight width of the existing access. We return to the question of the fence below.

Legal issues

[10] Neither party attempted to make any submissions on points of law. The written application was based on averments that the variation of route was justified because of factor (a) of sec 100 of the 2003 Act: namely because of a change in circumstances being the change in the nature of the use made of the benefited subjects. However, in terms of sec 98 we require to make our assessment of reasonableness having regard to the various factors set out in sec 100. It is now well established that this means that we must balance all the relevant factors. There was no sharp conflict of primary fact and we can start by setting out our primary findings relating to each of these factors. We then return to the balancing exercise, looking in more detail at some aspects of the facts and views of witnesses.

The prescribed factors

[11] The applicants’ house was originally a hall, “Victoria Hall”, on basement and ground floor levels with a flat above. The hall was later converted to use as a light engineering workshop and office. When Mr and Mrs Pollacchi bought the property in 1991 they obtained planning permission for a change of use on the workshop to form part of the existing dwelling.

[12] The benefited subjects lie to the north of the applicants’ property and consist of a single story building with no windows and a door on the west. At the north side of the building is a wooden shed which opens to the west. The rest of the benefited ground is tarmac hard-standing. We shall refer to that part of the benefited subjects as “the yard”.

[13] We heard that when the applicants moved in, the benefited subjects had been used as a builders yard. Vehicles came in and out during the working day. The size of vehicles was restricted by the pend. When the builders left, the premises were let to two young lads who intended to use them for a car valeting service. However, for various reasons that never came to fruition. They had started work to open doors in the north face of the building but the openings have been built up again. There was a fire. Plans by Mrs Campbell for reinstatement were hampered by lack of finance.

[14] We accept that the applicants had not been troubled by the level of activity when the yard was used by the builder. It would be fairly quiet during the day when men were out on their work and it was not used after business hours. In recent years Mr Hume has been tenant. He has used the yard for storage. At one point he had two caravans on the site, some cars, and a quad bike. He also had a derelict Jeep type vehicle which had been adapted for use as a raised flowerbed. This was a hobby and source of much pleasure for a friend in a wheelchair. He also used the building and shed for storage. He intended to build a garage on the site. He would be able to use it with his big trailer. The use made by Mr Hume is intermittent. There are occasions when there are people working in the yard. It is occasionally used in the evenings or overnight. This may mean vehicles or pedestrians crossing the applicants’ ground during hours of darkness. Anyone staying in a caravan on the yard could have an open view of the applicants’ ground.

[15] The subjects have always been used for commercial purposes. An occupier of such subjects might wish to use them in a variety of ways. Use by a trailer cannot be said to be something which was not contemplated when the burden was created. Although the applicants make specific reference to the difficulties caused by late access over their ground by occupants of the caravan, access at all hours of day or night would have been open to any occupant of the subjects.

[16] It is plain that the main change in recent times has been the applicants’ gradual conversion of parking space into a garden. The previous proprietor had let out parking spaces on the west side of the access route. Some seven spaces were available. Mr Pollacchi had allowed this to continue but when people left he did not replace them. We understood that there was only one person now using a space parking but that the applicants could bring that arrangement to an end at any time. This is a relevant change in terms of sec 100(a) but we consider that the applicants’ intention to create a private garden is better discussed as an aspect of factor (c) below.

[17] Factor (b): There is no doubt that the title condition confers a benefit on the benefited subjects. It provides a direct access route. There is no other access. Accordingly it is of critical importance to identify any adverse impacts a change to the proposed route would bring. There appeared to be three aspects to this: inter-visibility of vehicles; the restriction at the S bend; and the restrictions on vehicle manoeuvrability at the benefited property. We deal with these in turn.

[18] At present there is no real problem of inter-visibility. The access is straight. If two cars seek to use the route at once it is comparatively easy for one or the other to give way. There has been no experience of difficulty, possibly because there are so few vehicles involved that vehicles will seldom meet but also because cars have sufficient manoeuvrability and sufficient space for one or other to get out of the way without thinking anything of it. There would obviously be a greater potential problem if a towed vehicle was leaving the yard when another attempted to come in. There could be a problem of a vehicle having to reverse in the street in mid-turn and reversing when towing is not straightforward at the best of times. We heard nothing to suggest that this had ever presented a practical problem, probably because Mr Hume is in control of movements in and out of the yard and able to arrange things so that they do not occur.

[19] For the future, there might be an additional difficulty if a vehicle leaving the benefited subjects was in the new section when someone came in off the street. The extent of the problem would depend on whether there was ever any change to the use of the adjacent property to the west. It is currently a car-parking area and there was no suggestion that this would be likely to change. But if it was to be fenced, there might be a point where a vehicle was well into the pend when an emerging vehicle came into his path. One or other vehicle would have to back up. For cars this would present no problem. It would be much more difficult with a caravan or trailer. However, such operations would be controlled by the occupier of the yard who would in practice be able to arrange to avoid conflicting movements. Some simple warning signal could be devised. There would normally have to be more than one person at hand to help manoeuvre the big van or big trailer within the yard. Such person could check that the route was clear. We think that, in practice, the risk of two towed vehicles meeting in this way is slight.

[20] The proposed S bend would introduce a significant restriction. The evidence of Mr Pollacchi of the engineering analysis carried out on his behalf and based on the actual dimensions of Mr Hume’s smaller caravan, towed by a standard type of car, purported to show that such a caravan could enter the benefited subjects using the S bend. We note that the plan of the “swept area” (Map 3) appears to show that it would not be possible to do so staying within the line of the cross hatching shown as the line of the proposed change. But Mr Pollacchi did say he would accept minor variation and we proceed on the assumption that this part of the triangular area to the south of his proposed gate could be included in any variation we allowed. For present purposes we also make the assumption that the smaller van would also be able to leave the subjects using that route although no swept path drawings are available to vouch this. It would be a very much more difficult exercise than simply using the existing straight route. With experience a driver would, no doubt, learn how to position the vehicle precisely to allow the necessary clearance. But it would present problems for a driver using the route for the first time and we also have no doubt that some drivers would always have great difficulty in coping. The very fact of the side of the route being bounded by a fence at a corner point would make matters more difficult. Even an experienced driver would not find it easy to use the new route with a caravan.

[21] It was not disputed that Mr Hume’s bigger caravan would not be able to use the new route. Mr Hume had been in the habit of parking that caravan on the site although he is not doing so at present. We also accept his evidence that it would not be possible to bring his trailer along the new route. This was a longer vehicle than the big caravan. This would be irrelevant if the big caravan could not use the yard, in any event, if Mrs Campbell’s tenants were restricted to their strict rights of access and unable to encroach on adjacent land.

[22] It is plain that there has been a good deal of tolerance to date. But, the occupiers of the yard have no right to encroach on to the applicants’ land beyond the access route. If the applicants were to insist on their existing rights the space for occupants of the yard to manoeuvre vehicles would be greatly reduced. There is no doubt that Mr Hume has been able to park the big caravan on site but he freely accepted that, when manoeuvring in the past, he had used parts of the applicants’ ground which were not subject to the burden. The big caravan had to be manhandled but the towing vehicle could be parked out of the way on the applicants’ ground. He has not had to try to carry out all his turning manoeuvres staying strictly within Mrs Campbell’s land. He said that he was confident that he would be able to do so if necessary. The big van could be manoeuvred by hand and the towing car could be moved out of the way within the site. He was not subject to any detailed cross-examination on this point but Mr Pollacchi expressed his own doubt as to whether it would be possible.

[23] It is for applicants to establish their case and Mr Pollacchi did not attempt any positive demonstration that it could not be done. However, we had our own doubts. We attempted to assess matters ourselves at the site visit and we checked our impressions by use of the plans and scale cut-out vehicles. We concluded that it would be possible to store both caravans on site if necessary This would not be entirely easy and it is likely that the old truck and the trailer would need to be moved to allow this. The vans and trailer would need to be manoeuvred by hand. We do not think it would be possible to store both a big trailer and the big caravan because the towing vehicle would not have enough room to get out of the way and there would probably be insufficient room to turn the bigger van.

[24] Mr Pollacchi’s proposal required the access to the benefited subjects to be changed from the east side to the west and we considered the manoeuvring requirements with that in mind. However, we also consider the impact of the change of access on the way the yard might be used. Taking access on the west would mean that stored vehicles would have to be moved from their present position on the west and parked against the building. Parking there would inevitably impede access to the only door to the building. The extent to which this would be a problem would depend upon the use being made of the building from time to time. Quite apart from use of the door for access, it is not uncommon to find workshop or other activities spilling out of a doorway. That would present no difficulty under the present setup. It would not be so easy if vehicles had to be parked or stored beside the building.

[25] Factor (c): We are satisfied that the existing access does impede the enjoyment of the burdened property. Any right of access necessarily restricts the use which might otherwise be made of the land. Any right which divides the land may also have the effect restricting the proprietor’s enjoyment of his land. The applicants would have several benefits from the change. If the access ran to the side of the ground it would allow them to fence off the rest of the land. This would give them an enclosed area which they could use for normal domestic recreational purposes including use as a garden. The enclosure would prevent that garden being open to view by people using the benefited subjects. In particular, if the caravans were occupied, the fence would provide a valuable screen. Fencing their land would provide greater security. In particular, the applicants would no longer face the uncertainty of not knowing whether persons on their land were legitimate visitors to the benefited subjects or were intruders. This had been seen as a particular problem on occasions when a caravan had been occupied.

[26] The benefit of privacy is somewhat impaired at present by the fact that the ground is overlooked by the windows of subjects at 11 – 15 Brisbane Road. However, these do not appear to be sitting room windows and it may be said that, in course of our visit, we did not have any impression that being overlooked by these neighbours would be intrusive. Few town gardens afford absolute privacy.

[27] As matters stand the applicants could obtain privacy from the benefited subjects by fencing-off the access route on the east side. This would make a much smaller private garden but they could create a separate garden, perhaps for vegetables on the west side, with or without fencing. They could also continue to use a space on the western side for their own domestic parking.

[28] Factor (d): This head is irrelevant as the burden does not impose a positive obligation.

[29] Factor (e): We do not think anything turns on the length of time this burden has been in place.

[30] Factor (f): The purpose of the title condition is to provide proper access. It is an important issue for any property. There has been no change. We are satisfied that existing access rights must be protected and that we should not change them if we have any significant doubt about the suitability of the proposed alternative.

[31] It is a feature of this case that the proposed change would not only affect the access as such but would force the benefited proprietor to change the entrance. This would normally be a factor of some importance. It may often be possible to say that the purpose of a route was not merely to get to the benefited subjects but to get to a specific door or gateway. The present case is unusual in that the boundary is unfenced and the surfaces on each side are open tarmac. There is nothing to suggest that the purpose of the original route was specifically to provide access to the east side of the yard.

[32] Factor (g): The question of permissions has no significant bearing in this case.

[33] Factor (h): We have in the past expressed some doubt as to precisely how this factor would be taken into account. The present case might provide an example. Mrs Campbell fears a loss of rental income. If she had been able to establish such a loss and been able to quantify it with any precision, we might have had to consider the applicants’ attitude to making any payment. They made it plain that they did not offer compensation and were not prepared to make compensation in kind – such as by giving Mrs Campbell more land than was necessary. However, we are satisfied that there is no loss capable of proper quantification in this case and this factor does not have a bearing one way or another.

[34] Factor (i): This factor does not arise. We have not found it necessary to have account of any other factor under (j).

The balancing exercise

[35] Although the applicants found on the change in the nature of the use of the benefited subjects we are not persuaded that the change, as such, is of any great significance. It is clear that the critical issue is the conflict between the interests of the two proprietors: in other words the balancing of factors (b) and (c). We consider these factors to be fairly well balanced. Although it can be said that the applicants’ desire to convert a parking area to a garden is out of keeping with the nature of the subjects as a whole and will lead to the loss of the potentially valuable asset of rentable parking spaces, it must be recognised that proprietors value the right to use their land for their own purposes. Any impediment needs to be justified. It was clear that the applicants had already been able to convert parts of their property to garden or recreational use. We do not doubt that they would be able to convert the remainder of the parking area to a reasonably attractive garden although it would take a bit of effort and expense. In any event, we think it entirely reasonable that they wish to screen off their recreational ground from the activities on the benefited subjects. This would add to their privacy and to their feeling of security.

[36] But it must also be said that the owner of the benefited subjects is entitled to seek to preserve the maximum use of her own land. In Mrs Campbell’s case the direct benefit comes by way of a rental income but it is well established that we are not concerned with the personal circumstances of current proprietors. We see no reason not to accept that the use being made of the subjects by Mr Hume, her tenant, is representative of the use which might be made by any proprietor. Any occupier would be quite likely to wish to be able to use the land for parking or storage. The subjects might be used for certain small business purposes though it must be recognised that their attraction is limited by the pend and the existing difficulties of access. We are satisfied that it is reasonable to base our assessment of the impact of the new route on the use being made by Mr Hume. It is, no doubt, the case that he makes more intensive use of the parking or stowage space provided by the benefited subjects than another occupant might. But his use is not demonstrably outwith the scope of reasonable use.

[37] It was clear from the plans and the evidence that the current access is very restricted for most of its length from the South. Mr Hume explained that with a caravan he could only get in from one direction. He could take advantage of an opening on the south of Nelson Street which allowed full swinging room for a big caravan or trailer coming in from the west side. Once through the pend, the route across the applicants’ open space provides good access at present. We think that even if Mr Pollacchi did decide to fence it on each side, it would be easy enough to take towed vehicles along it because it is straight. If all parties were to insist on their rights the fence at the applicants’ door would have to be removed.

[38] The applicants’ proposal means, in effect, that they will lose all benefit from the land occupied by the access route. As it is, the right of access means that the owner can make no practical use of that land for his own purposes other than use for access. But he does have the benefit of using it to provide access to several parking places within his land. These will be lost. The proposed route will, in practice, be capable of beneficial use only by the occupiers of the benefited subjects. It is therefore entirely understandable that the applicants’ aim is to lose as little ground as possible. They were prepared to contemplate minor adjustment of the line but, for example, made it clear that they did not want to lose the land which lies immediately to the west of Mrs Campbell’s building and is currently the last section of the access route.

[39] Mrs Campbell voiced her objection to a change in the access from east to west side. She referred to losing space but did not attempt to demonstrate this in any specific way. The new route requires vehicles going onto the benefited subjects and round to the space at the north of the building to travel on the outside of a curve. The existing route is the inside of a curve. So the ”swept path” of the new route appears, from consideration of Map 3, necessarily to take up some more space. This would lead to some loss of some potential storage. It is likely that it would lead to some loss of car parking space. Much would depend on the size of the vehicles. By reference to Map 3, and allowing some modest clearance for the door area, it is not easy to identify more than three distinct parking spaces under the new proposal, being two to the west of the building and one to the north. There would be room for any of these vehicles to manoeuvre by reversing into the northwest corner. Accessing the parking from the present route, it is possible to identify five possible spaces but if all were occupied it might be difficult to turn to get out from some of them.

[40] The main problem discussed at the hearing related to the S bend. We are satisfied that the line proposed is too tight. Taking this with the impact on practical use of the yard discussed above, we have come to the conclusion that the proposed variation has not been shown to be reasonable. The application as it stands accordingly falls to be refused. We have had some hesitation in expressing a view as to a possible solution because it seemed that Mrs Campbell had not set her face entirely against the existing proposal. Her expressed wish was to get more space beside her own building. Mr Pollacchi did not want to be held to ransom in this way but he may not have fully understood that her other concerns were genuine and that some compromise might be found to suit everyone. It would be better for the parties to discuss things afresh and try to reach an amicable settlement more suited to their own needs. Mr Hume is not using the yard at present to store his big van. In practice it may be that he finds that it is not worth the effort of doing so because of the limitations of the present access through the pend. Accordingly any attempt to make the route wide enough to accommodate that van might be of no practical benefit to Mrs Campbell and her tenants, present or potential. On the other hand some extra space at the north end of the route might make all the difference to the use of the yard in practice. However, we recognise that no compromise may be possible and accordingly have decided that it is appropriate, in the particular circumstances of this case, to give an indication of what would be acceptable to the Tribunal.

[41] We see no great difficulty in reducing the angle of the S bend at its north end. But there is a greater constriction at the south end. We must assume that all proprietors may exercise their rights strictly. In other words we must proceed on the basis that the neighbouring car parking space at the south west end of the route might come to be fenced off. At site inspection we visualised a post at the north east corner of that land. As matters stand there is an obvious pinch point between such post and the corner of the applicants’ fence. We think that if the east side of the new access started at the south brick pillar of the south door of the applicants’ building and ran to a point 3500 mm east of the boundary wall and 4000 mm north of the extended line of the north wall of their building this would provide a curve capable of being negotiated without undue difficulty by the smaller caravan. The line could then run north parallel to the wall at a distance of 3500 mm and for a length of about 9000 mm to a point 1000 mm south of the extended line of the south wall of Mrs Campbell’s building. It would then go across to meet the boundary between the parties’ subjects at the wall of the building. We think a distance of 3500 mm from the wall adequate for the straight section. It is wider and not much longer than the 3000 mm pend which has to be negotiated. On the west side we think that sufficient swinging room for a trailer would be provided if the line ran from the north east corner of the neighbour’s land to a point on the west boundary on the line of the extended north wall of the applicants’ building.

[42] Mr Pollacchi did not think it necessary to accommodate the bigger van. He argued, instead, that use for storing such a van was overuse of the site. There is some force in this. But, as we have said, we are satisfied that the occupiers of the benefited subjects are entitled to make as much use as they can of the site. It was not suggested that there was any illegality in the uses they had made. This included use of the site for both vans at the same time. Our proposed line would allow the bigger caravan or Mr Hume’s trailer to pass. They might have to be manhandled to negotiate the bends. We recognise that manhandling is not needed on the present route but it would be needed in any event to position the van in the yard. We consider this reasonable in all the circumstances. The greater splay allowed at the north end will allow some greater manoeuvring of vehicles than would be permitted by the present site. As all practical use of the land will, in any event, be lost to the applicants we would consider it appropriate to stipulate that the burden at that splay included use for temporary parking of taxed and insured vehicles.

[43] At the south end, the access will continue to run quite close to the applicants’ doors. It is not entirely clear to us whether the existing fence is wholly to the east of the line we propose. We do not have the precise position of the fence on of the any available plans. Our impression is that the line accommodates the existing fence but we have determined the line with a view to facilitating the movement of vehicles and our intention is that fence be moved if necessary to accommodate the line rather than the reverse.


[44] Although we are not persuaded that the proposed variation is reasonable we have continued the case to allow parties to consider whether they can agree a solution which better fits their requirements. But, balancing the various factors in sec 100, we have concluded that if the applicant was prepared to accept the line described above and indicated by the blue line on the plan annexed hereto, we would be prepared to vary the route to that effect with the respondent having a restricted right of parking over the area hatched red.

Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 7 April 2014

Neil M Tainsh – Clerk to the Tribunal