OPINION

Kevin Mahoney and Barbara Mahoney (Applicants)
v
Roy Cumming and Helen Cumming (Respondents)

Subjects: 56A Village, Sandend, Banff

Introduction and summary

1. The once thriving Aberdeenshire fishing village of Sandend is now largely given over to holiday homes.

2. Two of those, adjacent to each other, are owned by the parties to this case and, with a third, form a terrace of three houses converted from a building which was originally a school and then a meeting house, or Gospel Hall, owned and used as a place of worship by the Christian Brethren for whom this part of Scotland was once, and possibly still is, something of a stronghold.

3. This terrace of three houses runs north-south, with the houses fronting, to the east, the road into the main part of the village and to the harbour beyond. Mr & Mrs Mahoney, the applicants in this application, own the northmost house, known as “Sea Breezes”, and the respondents, Mr & Mrs Cumming, own the middle house, known as “The Old Hall”. The southmost house is known as “Inchard” but it plays no part in this application.

4. The application is made under sec 90(1)(a) of the Title Conditions (Scotland) Act 2003 (“the 2003 Act”) and seeks “to have any servitude right of way over their [i.e. the applicants’] land discharged”.

5. The route over which “any servitude” runs begins at the main road at the north of Sea Breezes, where a gate gives entry to the applicants’ property and from which a path runs westward along the gable end of their house, then, southward, along the back of the house and round an extension housing the kitchen and dining area, until it reaches the respondents’ property. The applicants, in essence, seek to have any right the respondents have to use this path discharged.

6. The general terms of the order sought – “any servitude” – are explained by the fact that the case is concerned not only with a specific burden contained in the titles of parties’ properties but with a much wider servitude right of access which is said to have arisen by prescription at some point since Sea Breezes was split off from the larger subjects. The validity of this purported servitude has never been judicially determined despite proceedings having been brought by Mr & Mrs Cumming for that very purpose (and for ancillary orders) in Aberdeen Sheriff Court in 2016, which proceedings were abandoned by them on the eve of proof, apparently resulting in a decree of dismissal rather than absolvitor. We have no power to decide its validity because sec 90(1)(a)(ii) confines our jurisdiction in that regard to real burdens. Accordingly the case concerns the discharge of both an undisputed and a purported title condition, as is permitted by the terms of sec 90(1).

Procedure

7. We heard the application at Banff Sheriff Court on 19 March 2019 when the applicants were represented by Mr Paul O’Brien, advocate, instructed by Aberdein Considine, solicitors, and the respondents by Mr Duncan Love of James & George Collie, solicitors, Aberdeen.

8. For the applicants evidence was given by both Mr and Mrs Mahoney and by a near neighbour, Mr Graham Winfield. For the respondents, again both Mr and Mrs Cumming gave evidence as did their son, Mr Colin Cumming. No significant issues of credibility or reliability arose and there are no factual conflicts which we require to resolve, so we need not narrate the evidence.

9. We carried out an inspection on the afternoon of Monday 18 March and the Clerk, Mr Tainsh, returned to Sandend on the morning of 20 March to check on certain matters mentioned in the evidence.

The law

Title Conditions (Scotland) Act 2003

90(1) Subject to sections 97, 98 and 104 of this Act and to subsections (3) to (5) below, the Lands Tribunal may by order, on the application of –

(a) an owner of a burdened property or any other person against whom a title condition (or purported title condition) is enforceable (or bears to be enforceable) –

(i) discharge it, or vary it, in relation to that property; or

(ii) if the title condition is real burden or a rule of a development management scheme, determine any question as to its validity, applicability or enforceability or as to how it is to be construed …

98 An application for the variation, discharge, renewal or preservation of a title condition shall, unless it falls to be granted as of right under section 97(1) of the Act, be granted by the Lands Tribunal only if they are satisfied, having regard to the factors set out in section 100 of this Act, that –

(a) except in the case of an application under subsection (3) of section 34 or, in respect of a deed of variation or discharge granted by the owner of an adjacent unit, subsection (1) of section 37 of this Act, it is reasonable to grant the application …

100 The factors mentioned in section 98 of this Act are –

(a) any change in circumstances since the title condition was created (including, without prejudice to that generality, any change in the character of the benefited property, of the burdened property or of the neighbourhood of the properties);

(b) the extent to which the condition –

(i) confers benefit on the benefited property; or

(ii) where there is no benefited property, confers benefit on the public;

(c) the extent to which the condition impedes enjoyment of the burdened property;

(d) if the condition is an obligation to do something, how –

(i) practicable; or

(ii) costly,

it is to comply with the condition;

(e) the length of time which has elapsed since the condition was created;

(f) the purpose of the title condition;

(g) whether in relation to the burdened property there is the consent, or deemed consent, of a planning authority, or the consent of some other regulatory authority, for a use which the condition prevents;

(h) whether the owner of the burdened property is willing to pay compensation;

(i) if the application is under section 90(1)(b)(ii) of this Act, the purpose for which the land is being acquired by the person proposing to register the conveyance; and

(j) any other factor which the Lands Tribunal consider to be material.

Cases referred to

Brown v Kitchen & Others 28.10.10, LTS/TC/2009/46
Chisholm v Crawford 17.06.10, LTS/TC/2009/42
Colecliffe v Thompson 2010 SLT (Lands Tr) 15
G v A 26.11.09, LTS/TC/2009/13
Graham & Anr v Lee & Anr 18.06.09, LTS/TC/2008/41
Mackay & Anr v Bain & Anr 29.01.13, LTS/TC/2012/24
Parkin v Kennedy 23.03.10, LTS/TC/2009/35
Stephenson & Anr v Thomas & Anr 21.11.12, LTS/TC/2011/42

The facts

10. Of the three dwellings which now comprise the terrace described above, the first to be created and split off was what is now the applicants’ property, Sea Breezes. The relevant writ is a Feu Charter by the Trustees for the Body of Christians Worshipping in the Village of Sandend known as Brethren in favour of George McKay recorded in the Division of the General Register of Sasines for the County of Banff on 7 October 1907. It contained a burden in the following terms:

“It is hereby specially provided and declared that the said George McKay and his foresaids shall have right to the use of the well situated at the foot of the said retaining wall upon that portion of said whole Lot or piece of ground which is not included in the subjects and others hereby conveyed together with right of access thereto through that part of said outside passage which is not included as also access by the said outside passage and stair also situated upon the said not so included ground to the garden ground forming part of the ground disponed under these presents and it is hereby further specially provided and declared that we and our foresaids as well as the said School Board of Fordyce, their Tenants and Successors and the Teacher for the time being of Sandend Public School while in the occupation of the Dwellinghouse situated upon the feu adjoining the said non included ground shall have the joint use of said well along with our said disponees together with access thereto through that part of said outside passage which is disponed under these presents” [our underlining showing the wording which imposes the burden sought to be discharged].

(It is to be noted that the wording of the burden is slightly different in the applicants’ registered title sheet, BNF8796, the terms of which are reflected in the wording of our Order. It should further be noted that the title sheet erroneously gives the recording date as 7 October 2007 instead of the correct year of 1907. However, nothing turns on this.)

11. The well referred to there is situated within the respondents’ property, behind the house and within a retaining wall at the foot of their garden. In 1907 there was no back door by which the then proprietors could access it, hence, no doubt the need to retain a right of access round the end of the subjects being disponed.

12. The respondents bought what is now their home from the Christian Brethren in 2000 and set about converting it for residential use. That work was completed by some point in 2003 and included the formation of a back door.

13. At that time the respondents were both working, so visits to Sandend were confined to holidays and occasional weekends in between. They are now both retired and have more time to spend at Sandend should they choose to do so although it appears that they themselves are there only five or six times a year. However, they have three of a family, all with their own families, who all use it, as do friends from time to time.

14. When the respondents bought The Old Hall, Sea Breezes was owned by a Mr & Mrs Anderson, who spent much of their time there, although they were not permanent residents. Although there was a suggestion that use of the access by the respondents in their time was not entirely problem free, it seems to have worked well enough, the respondents taking care to tell the Andersons when they proposed to use it.

15. The applicants bought their home from Mr & Mrs Anderson in 2013. Well before then, in or around 1950, the original house had been extended by the addition of a kitchen and dining area to the rear, narrowing the width of the access round the back of the house. The applicants spend most weekends at Sea Breezes and are also there at holiday times.

16. There is, of course, no longer any need to draw water from the well and, because of the creation of the back door, no need to go round the applicants’ property to access it, unless, possibly, for major repairs such as were required when the retaining wall collapsed as a result of the well becoming choked while the conversion work was being done, between 2000 and 2003. Routine cleaning of the well, to keep it clear of clay deposits and to prevent another collapse, can be done by removing accumulated silt and clay deposits by bucket, through the house.

17. In the period of the respondents’ ownership of The Old Hall, the disputed access has been used by them, or anyone on their behalf, only relatively infrequently. One such use has been for the delivery of coal, the main source of heating in The Old Hall. There is a coal bunker out the back. In the time the respondents have owned The Old Hall there has been one coal delivery made via the disputed access. An attempt at a second delivery failed when the coalman found the gate giving entry to that access padlocked. That was before the applicants bought Sea Breezes. Since then the applicants’ son, Colin, has taken bags of coal round by that route on two occasions.

18. The other uses to which this access has been put by the respondents, whether before or after the applicants bought Sea Breezes, are: (a) occasionally taking wheelie bins from the back of the house to the front, (b) use by tradesmen wheeling away bricks taken out of redundant storage heaters and (c), possibly, use by workmen repairing the collapse of the retaining wall.

19. Whether it is in fact possible to take a wheelie bin of the size and type presently in use by Aberdeenshire Council round the access path is something on which we heard a good deal of evidence. We accept that it has been done by Mr & Mrs Cumming and that it is, therefore, possible, although it does not seem to us to be as easy a matter as they and their son, Colin, suggested. The heightening of the bottom step of the stairway up into the rear garden has made it even more difficult but, if the right we are discussing exists, it predates the alterations to the lowest step and the additional breeze block placed there by Mr Mahoney would have to be removed to allow it to be exercised.

20. However, the ability to use the disputed access for these purposes, or any other, was brought to an end when the applicants built a wooden fence along the southern boundary of their garden and the northern boundary of the respondents’ garden and extended it across the access. Although the evidence did not disclose when this was completed, plans for it were being prepared shortly after they bought the house: the copy plan which is production R36 is dated July 2014. They had planning permission for the fence in so far as bounding the two gardens but not for its extension across the path. It was the building of that fence which triggered the inconclusive proceedings at Aberdeen Sheriff Court to which we have already referred.

21. Apart from the back door there is no other access to the respondents’ back garden (we say back garden, but none of the houses has a front garden, their front doors opening directly onto the pavement of the public road). The land to the rear (west) of that garden is still in the ownership of the Earl of Seafield and occupied by a farmer.

22. The major issue between the parties is whether there is a need – indeed whether it is feasible – to use the disputed access (ignoring, for this purpose, the present impediment of the wooden fence) to get refuse bins from the back of The Old Hall to the public road. The applicants say (a) that the path is, at a particular point, too narrow anyway and that bins would have to be lifted over the bottom step (now raised in height by the applicants by the addition of a breeze block) of a concrete stair which goes up from the back of the houses into their gardens, (b) that there are other bins, available to anyone who wishes to use them, elsewhere in the village, particularly at a car park a few hundred yards from The Old Hall, and (c) that many holiday home owners take their rubbish home (or at least elsewhere) with them. The respondents say (a) that it is perfectly possible to negotiate a wheelie bin round the disputed access and that it is possible to ease, or pull, it over the bottom step of said stair (or, at least, that it was possible to do so before the step was heightened), (b) that such other bins as there are in the village, and particularly those at the car park, are for the use of visitors and would quickly become inadequate if used by homeowners, (c) that it is undesirable and, in any event, impracticable to take wheelie bins through the house and onto the street, (d) that the pavement outside the house is too narrow to allow bins to be situated there permanently, and (e) that they are, therefore, under necessity of taking their rubbish home with them.

23. As a matter of fact, established by our own inspection, we can confirm (a) that the pavement outside is too narrow for bins to be left there permanently and (b) that the waste facilities at the car park comprise three glass recycling bins and two general rubbish bins although the latter are restricted, in terms of what can be put in them, by metal bars which limit the extent to which they can be opened.

24. Access through The Old Hall, for the purpose of getting, say, material and equipment for building repairs or garden use, or, indeed, any long or bulky items is difficult. These houses are not of generous proportions and the internal configuration of The Old Hall, with sharp right and left turns, would make it awkward to take such items through the house. So, for example, a set of ladders such as might be needed to access the roof might be difficult to take through the house.

25. There are also physical restrictions on what can be transported along the disputed access, caused by its narrowness (approximately 34.5 inches or 87 cms).

Submissions

For the applicants

26. The applicants’ submissions sought discharge both of the servitude created in the 1907 Feu Charter (“the 1907 servitude”) and the purported servitude said to have arisen by prescription (“the prescriptive servitude”). A servitude was a title condition in terms of the definition contained at sec 122(1)(b). It was within our jurisdiction to discharge purported title conditions as well as ones whose validity was not in doubt; sec 90(1). Stephenson v Thomas was a case of that kind.

27. Reference was made to the test of reasonableness contained in sec 98(a) and to the factors to be taken into account in terms of sec 100. Emphasis was put on factor (a) – any change in circumstances since the title condition was created – the principal change relied upon here being the creation of a back door in The Old Hall but the fact that the well was no longer used for drawing water and the extension of Sea Breezes to the rear, thus narrowing the path of the access were also prayed in aid. The formation of the back door put the respondents’ property in the same position as any other mid-terraced house.

28. The creation of an alternative means of access, where previously there had been none, was clearly a major change in circumstances, which, in words used by the Tribunal in Stephenson, “point[ed] strongly to the reasonableness of discharge, because the purpose of the condition is equally well fulfilled by the new access”. Reference was also made, under this head, to Colecliffe v Thompson and G v A, two cases in which the creation of a new access provided a justification for discharging the older access right.

29. By contrast some of the cases relied upon by the respondents involved no change in circumstances and the Tribunal had refused to discharge the existing access; Mackay v Bain, Chisholm v Crawford. Graham v Lee was an example of a right of access being discharged because it was of little real value. Brown v Kitchen was a case in which the Tribunal had been prepared to vary a right of access but only in favour of an alternative which was comparable with the existing right.

30. With reference to the respondents’ insistence on the 1907 servitude, that was a change of position on their part, both in terms of the position taken in the Sheriff Court proceedings and in their original answers to this application. The fact was that the well was of no continuing significance and its importance was being exaggerated late in the day in a search to find grounds for opposing this application.

31. So far as the need to get wheelie bins to and from the street was concerned, the respondents had given evidence that they had only rarely used the disputed access for that purpose, nor was there a need for them to use it. They tended to take their rubbish away with them but there was also the option of having the bins out the front permanently or using the bins at the carpark. Moreover the bin collection schedule was not conducive to use unless one was resident for a fortnight. In any event the path was narrow, which imposed limits as to what could be carried over it, and negotiating it with a wheelie bin was problematic in that the bin would have to be lifted over the bottom step of said stairs. Coal could be carried though the house. The benefit this access conferred on the respondents was therefore minimal; factor (b) of sec 100.

32. In terms of factor (c) – the extent to which the condition impedes enjoyment of the burdened property – the applicants’ enjoyment of their property was impeded in the following ways: privacy and security were compromised and the path would have to be kept free of obstruction, so it could not be used for storing anything on it.

33. Not much was made of factor (d) – the length of time since the creation of the condition. If the prescriptive period, then 40 years, started in 1907 the prescriptive right would have come into existence in around 1947 and the changes already mentioned had taken place since then.

34. The existence of planning permission (for the fence; factor (f)) was a minor consideration.

35. Factor (j) – the “catch-all factor” – allowed us to take into account that the respondents had abandoned the litigation by which they had sought to vindicate their purported right. In Stephenson the Tribunal had attached some importance to the fact that there were Sheriff Court proceedings as to the continued existence of the right pending. Here the proceedings had been discontinued.

For the respondents

36. The proposed discharge would impair the respondents’ use and enjoyment of their property.

37. The applicants required to show that it would be reasonable to discharge the title conditions in question. Reasonableness had to be assessed objectively, not on the basis of the subjective needs and aspirations of the present proprietors.

38. Looking at the sec 100 factors, the starting point was frequently (f), the purpose of the title condition. Although the well was no longer needed for water, it was important for drainage purposes and a right of access was needed so that it could be cleaned out and repaired as required. In cases of positive servitudes there was an inherent right to the dominant proprietor to enter the servient property to carry out whatever work was necessary to keep the right in existence; Cusine and Paisley, Servitudes and Rights of Way, page 478, para 12.129.

39. Although it was accepted that the installation of a back door was a material change in circumstances, the access thereby created was not without its problems and it could not be said that the purpose of the original access was equally well fulfilled by access through the house. In that situation it was not reasonable to abandon the original access. Reference was made to Stephenson at para [43] where the passage relied on by the applicants about the creation of a direct access route pointing strongly to the reasonableness of discharging an access route over another property was qualified by the Tribunal saying “If, however, experience of use of the new access has shown it for some reason to be difficult, it may be reasonable to consider reverting to the first route”.

40. In Chisholm v Crawford the Tribunal had asked whether the alternative access was “a reasonable and practicable alternative to the present arrangements”. Applying that test here, it was clear that access through the house was not a reasonable and practicable alternative, at least when it came to the movement of wheelie bins and the transporting of items which were bulky or long. Factor (a) was therefore neutral.

41. What really mattered were factors (b) and (c) and the weighing of the benefit of the title condition to the benefited property as against the burden it imposed on the burdened subjects. Use of the disputed access was of considerable benefit to the respondents. Until its use had been rendered impossible by the erection of the barrier across the route at the boundary of the two properties, the route had been used for wheelie bin access, deliveries of coal and access by workmen with their equipment for the purpose of carrying out repairs to the rear of the respondents’ house. Viewed objectively, it was unarguable that a householder was benefited by having an “open-air” access to the rear of his house as opposed to one through his house.

42. By contrast, the burden on the applicants’ property was extremely limited. There would be a slight intrusion on privacy and a slight reduction in the use which could be made of the path (as for storing items) but issues such as where the applicants would keep their own wheelie bins (if not on the access) were not insurmountable. The balance of factors (b) and (c) therefore weighed in favour of the respondents.

43. Factor (g) also favoured them: Mr Mahoney had accepted in evidence that he did not have planning permission for extending the fence across the path.

44. No offer of compensation had been made by the applicants, so factor (f) did not come into play. Nor did anything arise under factor (j).

45. Against that background, the respondents’ submission was that to be confined to an access route via the front door and through the house would be unreasonable and would have an adverse effect on the value of their property. That was particularly so in the context of a future owner who may live there permanently. The case was comparable on its facts to Mackay v Bain in which the Tribunal, having reviewed the various factors, had said:

“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 applicant’s property but in our view the loss of the direct access to the front door of [their home] would adversely affect the respondents’ enjoyment of their property to a very considerable degree.”

The application should therefore be refused.

Tribunal’s consideration

46. In terms of sec 98 of the 2003 Act we can discharge a title condition only if, having regard to the factors set out in sec 100, we are satisfied that it is reasonable to do so.

47. So far as the discharge of the 1907 servitude is concerned, we are satisfied that it should be discharged. Indeed that was the respondents’ position when they first lodged answers to the application, on 29 May 2018, when it was said, in terms, that this part of the application was unopposed. That changed in July 2018 when adjustments were made to aver that, although it wasn’t being used to draw water, the well was an important part of the drainage system of the land to the rear and that it, therefore, had to be maintained, repaired and renewed as required.

48. The fundamental reason for holding that it is reasonable to discharge this condition is that its purpose (to draw water) no longer holds good (factor (f) of sec 100). Moreover circumstances have changed (factor (a) of sec 100) in the 112 years since its creation: not only are the premises now supplied from the public water supply but a back door has been created giving direct access to the back garden and the well. We accept that the well requires to be kept clear for drainage purposes. It was last cleaned out by Mr Cumming last year when a bucket of “sludge” was removed. Unlike Mr Cumming, we see no difficulty with taking a bucket of “sludge” through the house and if that is typical of the maintenance needed (and Mr Cumming did not suggest otherwise) there is no need for access round Sea Breezes. In short, the burden no longer confers any benefit on The Old Hall (factor (b)(i)) and it should be discharged.

49. The position with the purported prescriptive servitude is less straightforward. Its extent and validity have never been judicially determined, so it is difficult to know what purported right it is we are being asked to discharge. The tenor of the evidence was that it was a right which would rarely be exercised and only for necessary purposes but we note that what was sought in the Sheriff Court proceeding was declarator of the existence of “a servitude right of way for pedestrian access”, without qualification as to use. However, consistently with the way in which the case was presented, we proceed on the basis that it is one for all necessary purposes.

50. Before we come to a consideration of the sec 100 factors, we wish to say something about the approach to be taken in such cases and about the facts of the present case.

51. As has been said in several of the cases cited to us, we have to approach the matter objectively (see Colecliffe at para [16,], “It is not our function to apportion blame. Rather, we should look objectively at the relative positions of the two properties in relation to the servitude which the applicants wish discharged”; G v A at [20], “The test is objective, so that we are not particularly concerned with parties’ subjective position and intentions”; Graham at para [26], “The Tribunal … has to consider on an objective basis whether the applicants have satisfied us that it is reasonable to grant the application”; Brown at para [22], “In this case, we do think that the respective parties have each tended, probably unconsciously, to some extent to exaggerate their positions, coming as they do from their different perspectives … . We have to look at matters objectively”.)

52. A consequence of that is that we must look at the properties and not at the people who presently own them. That is made clear by the terms of sec 100 itself, which talks of “the benefited property” and “the burdened property”, not of “the benefited proprietor” or “the burdened proprietor”.

53. That in turn has the consequence that we are not concerned with the fact that these properties are holiday homes occupied for only limited periods. The question is not whether it is reasonable to discharge this title condition given how little use is made of it by the present proprietors, or any similar question, but whether it is reasonable having regard to the rights appropriate to the enjoyment of the property whosoever may be the owner. Mr O’Brien may or may not be correct in his view that it is unlikely that these properties will ever return to permanent occupancy but that is beside the point; the central question is the balance of benefit and burden, viewed objectively and unconfined by the present set of personal circumstances.

54. In relation to the facts of the case we would make three points. Firstly, as we have found in fact, leaving the wheelie bins at the front of The Old Hall is not a feasible option: they would block the pavement completely and there is nowhere nearby where they could be safely and conveniently located. Secondly, we do not accept that it is reasonable to expect the owners and occupiers of The Old Hall to use public bins elsewhere in the village or, worse still, in Portsoy, for disposal of their rubbish. As was pointed out by their son, Colin, in evidence, Mr & Mrs Cumming pay for a refuse collection service through their Council Tax and Aberdeenshire Council provide a door-to-door collection service throughout the village so why should they be expected to go elsewhere to get rid of their rubbish? Thirdly, we do not accept that the formation of the back door puts this property in the same position as the generality of mid-terraced houses. In our experience purpose-built terraced houses will either be designed so that it is reasonably easy to take large items backwards and forwards through them or they will have an access lane at the rear. Moreover many have front gardens where things like wheelie bins can be kept. The Old Hall is not a purposely designed mid-terraced house. It is a conversion created within a relatively small space which had to be used to optimal effect, with the result (confirmed by our inspection) that it is difficult to take large or long items through from front to rear. Moreover, there is no back lane and it fronts directly onto the public pavement.

55. With that we turn to the sec 100 factors.

56. Taking, as is usual, factor (f), the purpose of the (purported) title condition, as our starting point, there remains a need for access by this route for the purposes of getting wheelie bins to the street and as a route by which tradesmen can access the rear of the respondents’ property with equipment such as long ladders. Although coal can be carried through the house in small bags the route remains potentially useful for commercial coal deliveries. Accordingly it cannot be said that the purpose of the title condition has been eclipsed or is equally well served by the formation of a back door.

57. Of the other factors, (a) is relied on heavily by the applicants. The formation of a back door in the rear wall of The Old Hall is clearly a significant change of circumstance. It has, as we have already found above, extinguished the need for the 1907 servitude. In relation to the prescriptive servitude our finding, as discussed in the immediately preceding paragraph, is that it has reduced, but not extinguished, the need to rely on it.

58. Another change of circumstance is the 1950 extension of Sea Breezes to the rear, to create the present kitchen and dining area. Its effect was to significantly narrow the access route, with a consequent reduction on the size of anything which could be taken along it. Mr Cumming accepted in evidence that one couldn’t get an earth moving machine along the path. We think he and Mr O’Brien had in mind the sort of machine which might be used for landscaping a garden. So there are restrictions on what can be transported to the back of the house even by the external route.

59. Factor (b) requires us to consider the benefit conferred by the right on The Old Hall. It is as described in para 54 above. We regard it as significant. Without the right, the matter of refuse disposal is particularly problematic but it is also possible to figure situations in which equipment needed for repairs to the rear of the respondents’ property (items such as long ladders or scaffolding poles) might need to be taken round Sea Breezes.

60. Factor (c) deals with the other side of the coin; the extent to which the condition impedes enjoyment of the burdened property. In that regard, it involves, indisputably, an intrusion on the privacy of Sea Breezes. The path runs tight against the gable wall and then round the extension passing, first, a window in the sitting room, and then along immediately outside the kitchen and dining area. When Mr & Mrs Mahoney are having a meal they look directly out of the window across the path to the garden beyond. Anyone passing along the path would be walking immediately outside this window and could see in, if so minded. To what extent this is bothersome obviously depends on how frequently the access is used. For wheelie bin purposes that would only be twice every Monday; putting a single bin out and bringing it back. Coal deliveries would not be expected to be frequent, given the fact that there is a fairly commodious coal bunker at the rear of The Old Hall. The only other purpose for which access is required is repair to the rear of the property and that too is likely to be infrequent.

61. The security of the rear of Sea Breezes would also be compromised but, assuming people behave reasonably and in good faith, only minimally. The gate at the street could remain locked but a key could be provided to the owners of The Old Hall.

62. We also accept that the existence and exercise of the right is an inconvenience to the owners of Sea Breezes. It is always something of a nuisance (using that word in the non-legal sense) to have neighbours walking through your property and, in practical terms, it means you have to keep the access clear. In this context, the most problematic aspect is possibly where the owners of Sea Breezes would keep their own bins, so as to let The Old Hall’s bins pass. Productions R18 and R19 show the present arrangements, whereby Mr & Mrs Mahoney’s bins partially obstruct the route. It does appear, however, that there is space to the left, outside the boilerhouse door, into which they could be moved to allow Mr & Mrs Cumming’s bins to pass. In any event it ought not to be beyond the wit of neighbours acting reasonably to resolve such a minor problem.

63. Factor (d) applies where the condition is an obligation to do something. In that case the practicability and cost of doing it has to be taken into account. The present condition does not require the applicants to do anything except leave the access clear and we have addressed the practicability of that in the immediately preceding paragraph.

64. Factor (e), the length of time since the condition was created, seems to us to have no bearing on the matter beyond consideration of the changes which have taken place over that period of time. These have been dealt with above.

65. As to whether there is a planning consent for a use of Sea Breezes which the title condition prevents (factor (g)), there was disputed evidence as to whether the planning consent which the applicants undoubtedly have for most of the length of the fence they have erected along the rear boundary between the two properties extends to running the fence across the path. We understood Mr Mahoney’s position to be that he accepted that he did not have such permission although he had believed he had it when he erected the fence. At all events he has not proved that he has it and accordingly we attach no significance to factor (g).

66. The possibility of payment of compensation in return for a discharge of the title condition (factor (h)) was not raised by either party, so does not feature in the case.

67. Factor (i) not being relevant to a case of this kind, that leaves only factor (j), any other factor which the Tribunal considers to be material. The applicants’ submissions suggest that the abandonment of the Sheriff Court proceedings brought by the respondents might be relevant but don’t say how. It may be thought that abandonment suggests either or both a lack of confidence in being able to prove the existence of the right and/or that the right was not thought sufficiently important to pursue the litigation to a conclusion. The explanation for the abandonment given by Mr Cumming was that they had insufficient evidence to prove where the boundary of the two properties lies (one of the orders sought being removal of the fence because it was said to be on Mr & Mrs Cumming’s land). That does not explain why the rest of the case was abandoned. However, because we have to look at matters objectively there is no point in speculating as to what was, or was not, behind the abandonment.

Decision

68. As already indicated we are satisfied that the 1907 condition should be discharged. So far as the prescriptive condition is concerned, given that we have found that it still serves part of its original purpose, the consideration of whether it is reasonable to discharge it largely comes down to balancing the benefit to The Old Hall against the burden on Sea Breezes. It is envisaged that the right which is sought to be discharged will, in normal course, be exercised only twice a week (and on the same day), but it is important to the respondents nevertheless. In addition to allowing them to benefit from the Council’s refuse collection service, it gives them access to the rear of their property when such access is required for all necessary purposes but it is impracticable to take it though the house. On the other hand, infrequent use of the access minimises the extent to which it is a burden on the applicants. In these circumstances we are not persuaded that it would be reasonable to discharge this purported title condition and we have refused to do so.

Expenses

69. The applicants’ submissions are silent on expenses. The respondents ask us to give an opportunity for submissions on expenses once our decision has been issued. We have allowed a period of 21 days for that purpose.


Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 15 May 2019

Neil M Tainsh – Clerk to the Tribunal