Lands Tribunal for Scotland

OPINION

Peter Fletcher and Kathleen Fletcher
v
South Lanarkshire Council

Summary

The applicants are exercising their right to purchase the house which they presently occupy as joint secure tenants. Their house is at one side of a block of three, each of the other two houses having previously been sold to the tenants. The applicants objected upon discovering that the proprietors of the middle house had been given a servitude right of pedestrian access to their back garden by a path through the applicants’ garden and that it was proposed that the applicants’ title should be correspondingly burdened. Although their primary submission was that their tenancy was not burdened with any right of access, they offered to accept a restricted right of access in favour of the neighbouring house. The Tribunal has rejected an objection taken to the competency of the application, and has decided that the applicants’ tenancy was in fact burdened with a right of access but that this was a restricted right. The right, however, was not restricted as much as contended for by the applicants. Accordingly, we have ordered the respondents to include the following qualification in the Offer to Sell, viz. a declaration to the effect that this right of access should be related to the enjoyment of the middle house as a private dwellinghouse and limited to the following purposes:-

“wheeling bins, bicycles, prams or similar items and for carrying domestic and garden refuse or items of a heavy or bulky nature which it would be unreasonable to carry through the dwellinghouse and for any other necessary purposes.”

The Issues

The applicants, Peter Swan Fletcher and Mrs. Kathleen Sarah Fletcher, are admittedly joint secure tenants of the dwellinghouse at 63 Lesmahagow Road, Kirkfieldbank, Lanark. They applied to purchase their house. The respondents’ Offer to Sell dated 17 May 2004 stated that the subjects would be feued:

“subject to all existing rights of way and access, servitude rights, wayleaves and others in, over, under, through or affecting the subjects whether formally constituted or not.”

The title of the proprietor of 61 Lesmahagow Road, granted in 2003, includes the following:

“a servitude right of pedestrian access over and through the access path tinted brown on the said plan”.

The applicants made the present application under Section 71(1)(d) of the Housing (Scotland) Act 1987 on 21 July 2004.

Two issues were raised:-

  1. The respondents contended that the application was not timeous; and
  2. On the merits, the issue was whether, having regard to the proposed right of access (an ‘existing right’ in terms of the Offer to Sell, because the respondents’ title is burdened with it) the offer complied with Section 63(2)(e), i.e. was a proper offer to sell ‘the house’.

Procedure

Evidence and submissions on both issues were heard at a hearing on 11 May and 19 August 2005. The applicants were represented by Christopher Kelly, Advocate, instructed by Messrs Davidson and Shirley, Solicitors, who led in evidence each of the applicants and Yvonne Allan, a former tenant of 61 Lesmahagow Road. The respondents were represented by Mrs Margaret Cairns, Solicitor, who led in evidence Lorna Mair, a Housing Officer, Christine O’Neill, former Housing Officer and Samuel Gebbie, Property Adviser, all with South Lanarkshire Council, and Mrs Marion Faulds, the former tenant and now owner of 61 Lesmahagow Road, and Martin Cosgrove, the tenant of 55 Lesmahagow Road. Both parties lodged productions, mainly correspondence over the years on the access issue, the authenticity of all of which productions was agreed. The Tribunal also made an accompanied site inspection. The Tribunal received further written submissions on the wording of a restricted right of access if that were to be the Tribunal’s decision.

Cases referred to

Popescu v Banff and Buchan District Council 1987 S.L.T. (Lands Tr.) 20
Brown v City of Glasgow District Council LTS/TR/1988/64, 18.1.1990
Scullion v Dumbarton District Council LTS/TR/1990/178, 1.11.1990
Graham v Northern Joint Police Board 2000 S.L.T. (Lands Tr.) 7
Higgins v North Lanarkshire Council 2001 S.L.T. (Lands Tr.) 2
Mortimer v North Lanarkshire Council LTS/TR/2001/10, 29.5.2002
Erskine v West Lothian Council LTS/TR/2002/15, 20.8.2003

Facts

There was some uncertainty about the position in earlier years, but otherwise the basic facts were largely agreed. On the evidence and submissions, and also on the basis of our site inspection, we found the following facts established:-

1. No.63 Lesmahagow Road is the southmost of a block of three 1960s houses with an attractive westerly aspect in Kirkfieldbank, a village outside Lanark. The front of the block is a garden area with unfenced boundaries, but to the rear the houses have individual enclosed gardens. The gardens back immediately onto the enclosed gardens of other houses so that external access to the rear of the middle house, No.61, could in practice only be obtained from the garden of one or other of No.63 or No.59.

2. The applicant Mrs Fletcher has lived in the house since around 1971. She at first lived there with her previous husband, who was the tenant. The applicant, Mr Fletcher, moved in around 1980. Mrs Fletcher (then Kathleen Reilly) became the sole tenant under standard missives of let in 1986. The applicants became joint tenants under a Scottish Secure Tenancy Agreement, also in standard form, dated 15 March 2004.

3. The 1986 missives of let included the following provisions:-

“24. The Tenant shall not obstruct any common or shared path hall stair or landing or drying green or any other shared facility.

“27. The Tenant shall occupy the subjects of let in such a way as not to cause by his own action or inaction or by that of any member of his family or lodger or boarder in the subjects of let discomfort or inconvenience to neighbours whether by noise personal behaviour or by any other means.

“30. The subjects of let are let to the Tenant under burden of existing wayleaves and servitude rights and subject to a right in the Landlord to grant wayleaves and servitude rights in respect of passage of persons … also subject to the right of the Landlord to increase or decrease or otherwise vary the garden ground the drying green the paths or accesses and other facilities appropriated to the subjects of let.”

4. The Scottish Secure Tenancy Agreement of 2004, together with its lengthy incorporated Schedule, includes a definition of ‘common parts’, use of which is included in the definition of the accommodation let, as follows:-

“Any area which you share with other residents. This would include any part of the common close, common stairway, entrance steps, doors and doorways, entrance hall, passages, bin chute accesses, yard, garden, paths, outhouses, bin area or similar, cellar, loft space, back green, back court…”

In a section on ‘Respect for Others’, the Schedule provides, at para. 3.3:-

“In particular, you, those living with you and your visitors must not:-

… cause nuisance or annoyance to your neighbours … ”

5. Within the respondents’ area, there are numerous other blocks of three houses, including two other such blocks in Lesmahagow Road, presenting similar access situations. It is common for access to the middle house to be obtained from only one side. There being no specific indications in the tenancy agreements as to which of the side houses was burdened with such access, the physical indications originally included stone slabbed footpaths leading to gaps in the walls or fences between the gardens. The respondents’ predecessors did not provide gates in these gaps but tenants would be allowed to provide these at their own expense. Lanark County Council, and then after 1975 Clydesdale District Council, operated guidelines, which after 1975 were no longer specifically communicated to tenants, to the effect that such access was restricted to carrying items which it would be unreasonable to expect the tenant of the middle house to carry through the house. Prior to the introduction of ‘wheelie bins’, dustbin men would also walk to the rear of the house and uplift refuse sacks.

6. It is uncertain whether access to the rear of No.61 from No.59 was ever physically possible or practical. A footpath originally ran right round the rear of the building. No.59 was sold to its tenant some years ago, with no access burden being imposed on its title. A conservatory now occupies the relevant area to the rear of that house. No.61 was sold to its tenant, Mrs Faulds, in 2003, with the unrestricted pedestrian access right over No.63. The present physical arrangements at the rear of No.61, a decking construction, have removed any indication within that property as to whether there was formerly physical access from No.59. There is an original brick retaining wall dividing the sections of the two gardens nearest to the houses, the drop from No.61 to No.59, although not now precisely measurable, being approximately 1.6 metres.

7. Similarly, there is an original brick dividing wall, extending out approximately 4 metres, at the rear of Nos.63 and 61, and there is a drop of approximately 1.4 metres. The ground, however, slopes away irregularly to the north-west. Within the garden of the applicants’ house, there is a stone slabbed footpath proceeding round the side and rear of the house and following the line of the brick wall, beyond which it extends by approximately 1 metre. This is part of the original footpath. There is now a wooden gate between the end of the wall and the beginning of the fence. Stone steps within the garden of No.61 lead up to that point.

8. It is not clear whether the gardens were originally completely separated by wooden fences. In the early 1970s, when Mrs Fletcher moved into No.63, there were wooden fences separating the gardens, with either no or very small gaps between the end of the retaining walls and the start of the fences.

9. Before the early 1990s, binmen collected sacks of refuse from the rear of the houses. It may have been easier to collect the refuse sacks from 61 by standing in the rear of 59 and leaning over the wall or fence than by having to reach down from 63. When wheelie bins, which occupiers had themselves to take round to the street, were introduced in the early 1990s, part of the fence between 61 and 63 was removed and replaced with a wooden gate, apparently at the initiative of the respondents’ predecessors. Wheelie bins have always been taken through the garden of No.63 and not No.59.

10. Between 1991 and 2004 there was intermittent correspondence among the applicants (mostly Mrs Fletcher), various solicitors on their behalf, the applicants’ MP and MSP, the respondents’ predecessors and the respondents on the subject of access to the rear of No.61. The applicants’ position has mostly been that the access should be via No.59 but that they were prepared to allow restricted access, particularly for refuse collection (which, after the introduction of ‘wheelie bins’ would involve the tenant or owner of No.61 wheeling the bin along the path to the side of No.63). In her very first letter raising the matter, however, Mrs Fletcher wrote:-

“There is access on both sides but the access between 59 and 61 has been closed off … ”

11. The respondents’ predecessors’ position was always that access was via No.63 and not No.59, but their position about the precise nature of it varied. Initially, they told Mrs Fletcher and Yvonne Allan, the tenant of No. 61 from about 1991 to 1993, that the access was only for tradesmen, i.e. bin men (October 1991), or “for the removal of dustbins, garden refuge or any large objects they are unable to carry through the home or any tradesmen carrying out any property or garden maintenance.” (April 1992). As time went on, they started to assert that the tenant of No.61 always had an unrestricted right of access, albeit it was to be exercised reasonably, and that any ‘rulings’ which they had made restricting the right had been simply discretionary and subject to the right of the tenant of No.61 to claim the unrestricted right. The respondents, i.e. South Lanarkshire Council, followed a similar line. However, the respondents advised Mrs Fletcher in October 2000 that it would be in order for her to fix a lockable metal gate at the gable end of No.63 “to prevent unnecessary trespass by visitors to her next door neighbour” on the basis that Mrs Fletcher allowed access “for refuse collections etc.” (letter, 24 October 2000, to Mrs Fletcher’s MP).

12. Yvonne Allan was tenant of No.61 from 1991 to 1993. It was a practice of an acquaintance of hers to take a short cut through a back garden in the next street, the back garden of No.61 and the applicants’ back garden which caused Mrs Fletcher to make her first complaint to the respondents’ predecessors. The respondents then advised Ms Allan of the restricted nature of the access. She accepted the restriction and she herself only used the access path to put out her wheelie bin after that system started.

13. Mrs Faulds was the tenant of No.61 from 1993 until she purchased in 2003. Ms Allan told her that there had been problems but they had been sorted out and that she could use the access path for the bins and if she needed to take anything round. Mrs Faulds or her partner have used the access when there was a need to take something round, for example wheelie bins, heavy material for do-it-yourself work at the rear, etc., and also on an occasion when she was unable to use her front door because of an electrical problem in that part of her house.

14. When Mrs Faulds proceeded to exercise her right to buy No.61 in 2003, the respondents were aware that No.59 had previously been sold without any access burden and understood that there had never been any access over No.59. They took the view that there was a right of access over No.63. In accordance with the normal practice, Mr Gebbie, who was experienced in preparing such plans, visited the property prior to drawing up a title plan. He spoke to Mrs Faulds, who asked him about the access position. He informed her that it was standard policy of local authorities to grant rights of access under these circumstances. He had previously prepared a plan in connection with a purchase which did not proceed, and he confirmed that there had been no physical changes. The title plan which he prepared shows the boundaries of No.61 and also the footpath leading from the street through the front, side and rear gardens of No.63, with the information: ‘Right of access in favour of 61 Lesmahagow Road shown shaded blue’. Mr Gebbie did not show any further path on the plan and did not consider whether the access path ran across to No.59. He knocked on the door of No.63 but, receiving no reply, did not make any further attempt to check the position with the applicants.

15. The applicants themselves raised the access issue with the respondents in 2003, in correspondence and meetings. The respondents made clear their position that Mrs Faulds had a right of access. A Housing Manager, Mr Gray, advised the applicants that he had discussed the situation with Mrs Faulds and that she would “continue to limit the access to the wheely bin and other necessary occasions”. In another letter, the respondents’ Executive Director, Mr Gilchrist, informed the applicants:-

“Where there is a right of access, the Council would expect this to be a reasonable use and there are provisions in either the tenancy agreement or title deeds for a property which deal with any use which is not reasonable or which causes a nuisance to neighbours.”

Submissions

Competency

On the issue of competency, Mrs Cairns submitted, under reference to Section 66 of the Act, that the application was not timeous. Section 66(1)(a) required the tenant disputing the terms of an offer to sell to serve a notice under Section 65(1), or an application under Section 71(1)(d), in either case timeously. In the latter case, the time limit was the two-month time limit set out in Section 66(1). It could not be right that an applicant could come in with a Section 71(1)(d) application at any time. Mrs Cairns sought to distinguish Graham v Northern Joint Police Board, in which the Tribunal had decided (at page 16E-F) that there was no short limitation period applicable to Section 71 applications. She submitted that that case concerned section 71(1)(a), where, unlike (b), (c) and (d), there were no other time limit provisions, such as those in Section 66 on which she relied. Mrs Cairns did not make any submission on the basis of waiver or acquiescence as such.

Mr Kelly accepted that the applicants might have proceeded under Section 65, which did involve time limits, but submitted that the applicants were entitled to rely on Section 63(2)(e), because ‘house’ includes the rights attached to it, and therefore to apply under Section 71(1). He referred to Brown v City of Glasgow District Council, at page 11. The Tribunal had decided in Graham that there was no short time limitation period under section 71. The situation could arise, and indeed had arisen in the present case, where an applicant would not be in a position to comply with the Section 65 time limit. As a matter of syntax, Section 66(1)(a) could not be read as Mrs Cairns proposed. Further, Section 66(1)(b) envisaged acceptance of an offer within 2 months of a Tribunal decision under Section 71(1)(d). The reference in Graham was correctly to the whole of Section 71.

Merits

For the applicants, Mr Kelly explained that no plan had accompanied the Offer to Sell and the applicants had therefore had no immediate knowledge of the proposal to make their title subject to this access right in favour of No. 61. Application under Section 71(1)(d) was appropriate because the Offer did not comply with Section 63(2)(d) or (e), in particular because it was not an offer to sell the “house”, as defined by Section 338 to include the garden and pertinents as let. The house had been let unencumbered by any reservation of access. Although looking at the situation at the date of the application, the Tribunal had to consider the tenant’s rights under the lease. It was necessary to look at the rights at the beginning of the lease and then consider whether these were varied in any way – Erskine v West Lothian Council, Mortimer v North Lanarkshire Council. The subjects had been let in 1971 (to Mrs Fletcher’s first husband), 1986 and 2004. The 1986 lease had no clause reserving this right of access. Clause 30, which did not specify the right, was not effective to do so. The right would have to have been completely obvious or specifically pointed out to the tenant. Even if it was obvious on the ground that there was some access, the extent of the burden could not be apparent without detailed explanation. The direct evidence of the applicants, that there was then a continuous wall and fence, was to be preferred to Mrs O’Neill’s evidence that there would have been a gap. There was also Yvonne Allan’s evidence. The purported right of the landlord to vary the lease provisions was invalid – Section 54 of the 1987 Act. In the 2004 tenancy agreement, the opportunity to make the matter clear had not been taken. The applicants were then still occupying what they had always occupied and there was nothing to indicate any change. On the evidence of the communings between Mrs Fletcher and the respondents or their predecessors over the years, it was doubtful whether any informal agreement to vary had ever been reached. The respondents’ contention that there had always been an unrestricted right of access was undermined by the very early correspondence and by the evidence of their own witnesses. The applicants were in a position similar to, but stronger than, the applicants in Popescu v Banff and Buchan District Council,, Higgins v North Lanarkshire Council and Erskine, where informal agreements had not been sufficient to vary the tenant’s rights.

Mr Kelly, however, recognised that there was an alternative argument that the communings, in particular in 1993 and 2000, were sufficient, along with the 2004 agreement, to show a change in the position. In any event, Mr Kelly indicated that the applicants had instructed him to offer to accept inclusion in the offer of reference to a restricted right of access to be included in the title. The applicants’ revised version of this, following the post-hearing correspondence, is:-

“An heritable and irredeemable right of pedestrian access over the footpath area coloured ( ) on the plan for the purpose of wheelie bins and for the carriage of domestic and garden refuse provided it is contained within the wheelie bins and for independent tradesmen doing work to the outside rear of 61 Lesmahagow Road, Kirkfieldbank and for no other purpose except with the express permission of the owners of number Sixty-three Lesmahagow Road, Kirkfieldbank.

“The owners of number Sixty-three Lesmahagow Road, Kirkfieldbank, will be entitled to move the aforementioned right of access in the event of their building an extension or conservatory to the said dwellinghouse and that to a position allowing the proprietors of Sixty-one Lesmahagow Road, Kirkfieldbank similar access as currently granted.”

In discussion with the Tribunal during the hearing, Mr Kelly had indicated that it was problematic in any such definition to try and cover the carrying of heavy or large objects: it would be difficult to come up with a formula with the necessary degree of certainty. The provision allowing variation of the access route was not canvassed at the hearing.

For the respondents, Mrs Cairns submitted, under reference to Mortimer at pages 1,5-6, and Scullion v Dumbarton District Council, at pages 3,4 that the relevant date for consideration of the rights under the tenancy was 2004, the date of the most recent tenancy agreement. Nothing in the large amount of correspondence over the years had the effect of altering anyone’s rights as tenants. Nor did the 2004 agreement alter the lease terms: rather, it was a new agreement. That agreement, like the 1986 agreement, did not deal with specifics, but there was ample evidence from both sides that there was a right of access at that time. Mrs Faulds’ title was one item of evidence as to that, but was not conclusive, there being at least a suggested possibility of rectification under section 9 of the Land Registration (Scotland) Act 1979 albeit subject to section 9(3) - Higgins. The respondents’ witnesses had spoken to an unrestricted right of access, albeit the Council had guidelines and exercise of the access was expected to be reasonable.

If it was necessary to revert to the position under the 1986 agreement, Mrs Cairns said, again it gave no specific guidance, although the reference in Clause 26 to common rights envisaged common access arrangements in some of the properties. She took issue with Mr Kelly’s assertion of ‘uncontradicted evidence’ as to the position at that time: in her letter apparently dated 1991, Mrs Fletcher had indicated that there was access on both sides, and there were other contradictions in the evidence.

Finally, Mrs Cairns, while confirming her primary position that there was no restriction in the access, produced a possible formula for a restricted access right and indicated that she understood this to be in use by some other councils. As slightly altered in the post-hearing correspondence, this is as follows:-

“A heritable and irredeemable right of pedestrian access over the said footpath area for the purpose of wheeling bins, bicycles, prams, etc. or similar items and for the carriage of domestic and garden refuse or items of a heavy or bulky nature which it would be unreasonable to carry through the dwellinghouse and for any other necessary purposes.”

Tribunal’s Consideration

Competency

We do not accept the respondents’ submission that this application lodged just over two months from the date of the Offer to Sell was not lodged timeously. We consider, as the Tribunal did in Graham v Northern Joint Police Board, that there is no short time limitation period for applications under Section 71. The absence of express limitation in this section, by contrast with a series of specific time limit provisions in other sections of this part of the Act, seems to us to make the matter clear. We do accept that this case arises under quite different circumstances from those in Graham, but we did not find Mrs Cairns’ attempt to deduce a time limit through Section 66 convincing. Section 66(1), as amended by the Housing (Scotland) Act 2001, provides as follows:-

“(1) Where an offer to sell is served on a tenant and he wishes to exercise his right to purchase and –

(a) he does not dispute the terms of the offer to sell by timeously serving a notice setting out a request under section 65(1) or by referring the matter to the Lands Tribunal under subsection (1)(d) of section 71 …

the tenant shall serve a notice of acceptance on the landlord within 2 months of whichever is the latest of … ” (a series of specified events)

We agree with Mr Kelly that Section 66(1) cannot be read as importing a time limit into Section 71 as well as Section 65(1): to the contrary, its wording seems to confirm the distinction in this respect between Section 65 and Section 71.

The overlap between Section 71(1)(d) and the procedure under Section 65 for seeking variation in the terms of the Offer to Sell, with only the latter procedure being subject to specific time limits, may be seen as producing this slightly unfortunate distinction between the two procedures, but that is the result where a tenant is able to bring himself within Section 71(1)(d) as well as having a complaint which can be advanced through Section 65. In this case, the respondents do not suggest that this dispute is not one which falls under Section 71(1)(d). Nor did they make any submission in relation to waiver, and indeed it appears to the Tribunal that they were correct not to do so in the particular circumstances of this case, even although the applicants apparently at one stage formally accepted the Offer to Sell. There might be other circumstances in which waiver or acquiescence might arise.

Merits

It is well established that if they exercise their right to buy secure tenants such as the applicants are entitled to receive an offer to sell the property as let to them. That involves consideration of the position under their lease. In this case, there are two possible lease agreements. It is not argued by either side that there has been any variation of the lease terms. The provisions of both written agreements, however, do not spell out the position about access to No.61, making it necessary to look at the established circumstances and usage. We cannot accept that the absence of specific provision on this access issue establishes that there was no access, and the evidence, although not entirely clear about the position in 1986, leads us to the view that there was some established access on both possible dates. However, we see no proper basis for inferring that that this access was at any time unrestricted, as the respondents now contend. Rather, we think this is properly a restricted right of access, based on reasonable necessity. We do not think it appropriate that the restriction in exercise of the right should simply depend upon the discretion of either the landlord or, following sales of the properties, the owners of No.61.

The relevant tenancy agreement at the time of the application to purchase seems to us to be the 2004 agreement, which apparently preceded, although only just, the application to purchase. We accept Mrs Cairns’ submission that this is the measure of the applicants’ rights as tenants at the time of the application. Unfortunately, however, the opportunity to clarify then the access position about which there had been so much correspondence was not taken by either party, and this agreement contains no pointer either way to the correct position. The suggestion that in the absence of any express provision there was no right of access has some superficial attraction but cannot in our view be correct. As this case has illustrated, it has been a feature of council house tenancies over the years that they are in standard terms, referring typically to the dwellinghouse and garden, if any, with little or no further explanation of the extent of the subjects. The 2004 version elaborates on ‘accommodation’, which is to include ‘the use of the common parts’ and ‘any garden attached to it’, but tells us nothing in relation to burdens such as access. Ms Mair expressed the view that the reference to ‘common parts’, and a definition of these in the Schedule, assisted, but even if the path through the garden of No.63 did fall within that definition there does not appear to be any specific provision in the agreement which assists. However, it seems to us unavoidable that the grant of lease of the garden (like that of the house itself) must be subject to established burdens. If, when a tenancy is entered into, there is a clearly established and used access to another house through the tenant’s garden, the grant of lease of the garden must be subject to that right even although it is not expressed: the ‘garden’ is the garden as actually enjoyed. Cases, such as Higgins v North Lanarkshire Council, Popescu v Banff and Buchan District Council and others, have involved looking to see whether the issue as to the extent of the right granted to the tenant (whether as to the physical extent of the garden or the burdening of the garden with access in favour of a neighbour) was covered in the agreement and, if not, considering the established position. Qualifications as to the extent to which it is appropriate to look at the established circumstances and usage have been expressed in cases where there was no dispute as to the original position under the lease, for example Mortimer v North Lanarkshire Council at page 6 and Erskine v West Lothian Council at page 13. Accordingly, in this case we do not think the silence in the lease is conclusive against a right of access.

Mrs Cairns accepted that the grant of the right of access in favour of Mrs Faulds as owner in 2003 would not foreclose the question, although she said it was of some relevance.

When the question whether any access burden had been established by 2004 is asked, we are in little doubt as to the answer. It is clear to us that for many years before 2004, there was an established and used access in favour of the tenant of No.61 from No.63, for the following reasons: firstly, there has always been a footpath round the side of the applicants’ house leading past the retaining wall at the rear of their house to a point from which access to the garden of No.61 is natural; secondly, there has for many years now been a wooden gate into No.61 at that point; thirdly, there have apparently also always been steps within the garden of No.61 leading directly to that point (although we appreciate that these could, consistently, simply lead up to the higher point of that garden); fourthly, at least some access has been taken both by the present proprietor and former tenant, and by the previous tenant of No.61, using that footpath through the applicants’ garden, again for many years, particularly in order to put the wheelie bin out on the street; fifthly, Mrs Fletcher herself wrote in 1991 that there was “access on both sides” and we tend to the view that in its context that was not simply a reference to the physical possibility of access; and finally, for several years now there has been no access to No.61 through No.59 and it appears to us inconceivable that there would be no access at all to the rear of No.61.

We are thus clear that there is some established access which is a burden on the applicants’ tenancy. The issue as to the extent of that access is more difficult having regard to the dispute and lack of clarity in this case. Is it, as the respondents contend, legally unrestricted with any actual restriction in practice being merely informal? Or is it restricted to specific purposes? If the latter, how should these purposes be expressed?

An unrestricted access right would mean that the occupiers of No.61 were entitled at any time, for their convenience, to use the path through the applicants’ garden. They would of course require to exercise the right in a civil manner and not cause any nuisance or disturbance, but subject to that they would be free to use it as much as they liked. They might choose to use the back door to their house in preference to the front door.

We do not think that the access to the rear of middle houses in blocks of three is of that unrestricted nature, and we do not consider that the evidence in this case establishes any such right. We think it highly unlikely that a situation in which the middle house occupiers were free to walk through their neighbours’ garden at any reasonable time would be established. Rather, we think that the established access is based on reasonable necessity – situations, most commonly in relation to refuse collection, but possibly including other situations where it is not reasonably practical to take something through the house. We take this view on the evidence in this case for the following reasons: firstly, the landlords’ own reaction on being asked about the matter in 1991, was, following the longstanding guidelines spoken to by Mrs O’Neill, that it was so restricted, and it seems to us that their subsequent reversion to suggesting that the access was unrestricted was somewhat inconsistent and rather the product of their frustration at the long-running correspondence than anything else; secondly, Mrs O’Neill herself, speaking on the basis of her own experience living in an end terrace house, knew this to be the position and said that as far as she was concerned access was always of a restricted nature – we found Mrs O’Neill to be a clear and straightforward witness; thirdly, Mr Gebbie, with twenty years’ experience of seeing such situations, described the position similarly; fourthly, Yvonne Allan clearly accepted that position; fifthly, although Mrs Faulds described it as her ‘unrestricted right of access’, we think the proper interpretation of her evidence as to how she used it, following what Yvonne Allan told her about it, is that she was describing the access in similar restricted terms; sixthly, restricted access seems to us to have been established with the agreement of the applicants, who consistently indicated in correspondence that they were prepared to accept restricted access.

We do not consider that the fact that the respondents were prepared to grant an unrestricted right of access in the title of No.61 is a factor of much weight: this appears to have followed a general policy which seems to us to be at odds with the true position, at least in relation to this location.

The idea of an unrestricted right of access in this situation seems to us to involve some slightly confused thinking about the landlords’ position. The landlords expected the right to be used reasonably, meaning by this that (as anyone familiar with the three in a block situation would know) it would only be used for necessary purposes such as taking out wheelie bins. The suggestion that this restriction was achieved through the exercise of the landlords’ discretion as housing managers, with an ultimate sanction of invoking the lease provisions about behaviour and nuisance, leaving the legal right unrestricted, cannot be accepted. An access which is at the landlords’ discretion is not a right of access. The proper position is that it is a right, but a right which is clearly restricted. The view that this was all in the landlords’ discretion is reflected in older lease clauses such as Clause 30 of the 1986 lease, but a general right of the landlord to vary lease conditions has been incompetent since the Tenants’ Rights, Etc. (Scotland) Act 1980.

If it were necessary to consider this issue on the basis of the 1986 tenancy agreement, it would be more difficult on the basis of the evidence to reach a clear view about established practice and usage. Mrs Fletcher, with support from the evidence of Mr Fletcher, claims that at that time access was taken through No.59, and there is little in the way of directly contradictory evidence. The only example of this, however, was in relation to refuse collection. We can accept that in pre-wheelie bin days, and before the building of the conservatory at No.59, there was a practice of binmen approaching the uplift of bags of rubbish from No.61 from No.59, but that does not in our view establish that the right of access was only through No.59. It may mean no more than that the tenant of No.61 put out the rubbish bags on that side and the binmen, who entered the gardens of both No.63 and No.59 to empty their bins, reached over to No.61 from No.59 rather than No.63. Mrs Fletcher’s evidence was that at both boundaries not only was there no gate as now found at Nos.63/61 but on both sides there were wooden fences which extended right up to the ends of the retaining walls. That seems to be at odds with the evidence, which we accepted, that the normal treatment, by the landlords, of this situation was to have access from one of the side houses and leave a gap between the wall and the fence on that side. If it is correct, however, that there was then no gap on either side and the garden of No.61 was completely enclosed, we would still not accept that there was no right of access. Because of physical changes within the gardens of Nos.61 and 59 it is no longer possible to discern the full extent of the path, but what remains clear is that there was always a path running round the side of No.63 to the top of the steps at the end of the wall in the garden of No.61. We have also found that the drop into No.59 is slightly, although not much, larger than the drop from No.63 to No.61. The respondents’ witnesses were clear that because of the slope No.63 rather than No.59 was the natural way of taking access, although the topography together with the added structures did not make this particularly clear to us at our inspection. On balance, while we cannot altogether exclude the possibility that access was in practice only, or also, obtained from No.59 we think that as at 1986 there probably was at least some access from No.63, particularly because of the layout of the path and steps. Again, however, we see no reason to think that this was unrestricted access.

The final matter we have to consider is how to express the restricted right of access. We do agree with the applicants that there is no right of access by this route for the purpose of any business carried on at No.61. We note that under the 1986 and the 1994 tenancies of No.63 business was prohibited except with the landlords’ permission, and these, of course, were standard form agreements so that the same conditions would apply to No.61. There is a similar prohibition in Mrs Faulds’ title (Burdens Section, clause Ninth), although with the abolition of feudal tenure, enforcement of that prohibition apparently now depends on the application of Part 4 of the Title Conditions (Scotland) Act 2003. There was no suggestion in evidence of any established business use at No.61 and we cannot conceive of permission being granted for any business use which involved carrying heavy objects through the garden of No.63. There should therefore be a limitation to use of this access for the enjoyment of No.61 as a private dwellinghouse. In our view this access is based on reasonable necessity, the obvious example of which is refuse disposal. On the evidence, it appears to us to include not just the removal of refuse in wheelie bins but also moving heavy or bulky items and refuse which it would not be reasonably practicable to carry through the house. It also includes emergency situations. It does not require the consent of the tenant or owner of No.63: a right of access does not depend on consent, and it is not necessary to express the applicants’ willingness sometimes to agree to use going beyond the expressed restrictions. It is not easy to set out the exact limits of the use, and it must in practice depend on the commonsense and goodwill of neighbours. Having considered the formulas put before us, we largely agree with the respondents’ formulation. We do not consider that a formulation which restricts the right to the movement of wheelie bins, except with the permission of the owners of No.63, would be in accordance with the established position. Further, while we can see the attraction of including in the formulation an express right of the burdened proprietor to vary the access route, we cannot see how this can be said to have been established as a right under the tenancy agreement and consider that that is a matter which will require to be discussed and agreed with the proprietors of No.61 at such time as it arises. We would expect the owner of No.61 to accept a reasonable variation involving a similar width of path, and in the event of any opposition the proprietors of No.63 could apply to the Tribunal under section 90(1)(a) of the Title Conditions (Scotland) Act 2003.

The applicants have made a further point about maintenance obligations. We note that maintenance of the access path is specifically provided for in the the last sentence of clause Sixth in the Burdens Section of Mrs Faulds’ title (enforcement of which will also now depend on Part 4 of the 2003 Act). We do not consider it necessary or appropriate to make any further provision for this.

Decision

In these circumstances, we are satisfied that the Offer to Sell dated 17 May 2004 did not conform with the requirements of Section 63(2) of the Act, in respect of the proposal to impose a burden of an unrestricted pedestrian right of access in favour of No.61 Lesmahagow Road. We shall therefore exercise our jurisdiction to order the respondents to serve on the applicants an offer to sell, in proper form, and this by including a declaration to the effect that the right of access in favour of the proprietors of No. 61 Lesmahagow Road shall be limited as follows:-

“A heritable and irredeemable servitude right of pedestrian access in favour of the proprietors of Sixty One Lesmahagow road for the enjoyment of said dwellinghouse as a private dwellinghouse, over and through the access path tinted ( ) on the plan for the purpose of wheeling bins, bicycles, prams or similar items and for the carriage of domestic and garden refuse or items of a heavy or bulky nature which it would be unreasonable to carry through the dwellinghouse and for any other necessary purposes”.

As mentioned at the hearing, the original offer will require to be further altered to take account of the abolition, since the offer was made, of feudal tenure.

We shall specify the maximum statutory period of 2 months for the service of this offer. This is because we recognise that our decision and order will create difficulties for the respondents in respect that the restriction of the access right is in conflict with the title granted to Mrs Faulds in 2003. It is well established that this can unfortunately sometimes happen under this jurisdiction, because while we have power to decide the terms of an offer to which the applicants are entitled, our decision does not in itself alter the title which has already been granted to their neighbours. We anticipate that the respondents may wish to discuss the situation with Mrs Faulds and her advisers with a view to ensuring that the titles to the two houses can be consistent, and we should allow the maximum time for that to happen. It is to be hoped that Mrs Faulds, appropriately advised, will appreciate that the restricted access right which we consider to be the correct representation of the position as between the two properties, is in fact in line with the understanding which she herself expressed in her evidence to us. The possibility of rectification of the title already granted was discussed by the Tribunal in Higgins v North Lanarkshire Council, although the circumstances here are not necessarily exactly the same. We would only express the hope that this matter can be resolved by sensible agreement without the need for further contested proceedings.

We were not addressed on the matter of the expenses of this application, and we shall follow our normal practice of giving each party an opportunity, if so advised, to make any application for expenses by written submission.