Sheriff Court case considering an alleged servitude right of access to a site for development on Dundee Road in West Ferry. Harton Homes argued that a servitude right of access had been created by implication which led from their site to Dundee Road over the southern portion of a neighbouring property owned by Mrs Durk and through a gap in a wall which separating both properties from the road.
Both Harton’s property and Mrs Durk’s property had previously formed part of larger subjects owned by Mr and Mrs Callison who split the subjects in 1985 and sold parts to Harton’s and Mrs Durkin’s predecessors in title. The break off dispositions conveying these parts made no reference to a servitude right of access. However, the route over which Harton claimed the servitude had been created by implication had been marked as “mutual” on the plans attached to the break off dispositions.
A servitude can arise by implication on such a division of property where it is reasonably necessary for the comfortable use and enjoyment of one of the resulting parts. However, Mrs Durk argued that there were other potential alternative means of access which could be taken from the north of the properties. Potential access routes existed from Ellislea Road (situated to the east of both subjects and perpendicular to Dundee Road) or via another looping access road from Dundee Road meaning that there was arguably no necessity to imply a servitude over Mrs Durk’s property. These routes were probably not as attractive to Harton as they were less convenient and their gradient and the presence of a narrow archway made them unsuitable for construction traffic. Although the Callisons’ title to the larger subjects made reference to rights to use the alternative access ways, Harton argued that that these rights did not extend to their part of the property (suggesting that the rights stopped short of their property, or had been abandoned and that the use by them of the rights would illegally increase the burden on the servient property).
The main thrust of Harton’s argument was based on there being a “common intention” among the parties’ predecessors in title in 1984/5 (about the time the larger property was split) that access for both properties be taken over Mrs Durk’s property. The sheriff noted that, while common intention may be relevant as potentially throwing light on whether the parties considered the access to be necessary at the time of severance, it could not per se be a distinct ground for setting up an implied servitude. In any event the sheriff found himself unable to conclude that there was a common intention that the access right Harton argued for be granted. At best there had been an anticipation that the access would be available in 1984 when an application for outline planning permission for houses on each of the properties was submitted. Further, although later planning applications in respect of services to the plots showed the access located clearly on Mrs Durk’s property, initial planning applications for houses had shown the access located centrally. Harton could also have created a gap in the wall to the south of their property (similar to that in Mrs Durk’s property), the sheriff noting that there was no evidence of a title impediment and insufficient evidence of any planning impediment to do so. (However, evidence suggested that Harton may not have wished to create another gap in the wall as the gap situated on Mrs Durk’s property was more convenient and allowed for turning.)
After considering the evidence, the sheriff was not persuaded that there were physical difficulties or title impediments which prevented use of an alternative means of access to Harton’s property. In all the circumstances, Harton had failed to prove that the servitude through Mrs Durk’s property was reasonably necessary for the comfortable enjoyment of their property.
The full judgement is available from Scottish Courts here.
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