Aberdeen City Council V. Alok Wanchoo
| Jurisdiction | Scotland |
| Judge | Lord Eassie,Lady Paton,Lord Osborne |
| Neutral Citation | [2008] CSIH 6 |
| Court | Court of Session |
| Published date | 11 January 2008 |
| Year | 2008 |
| Docket Number | A390/05 |
| Date | 11 January 2008 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord Osborne Lord Eassie Lady Paton | [2008] CSIH 6 A390/05 OPINION OF THE COURT delivered by LORD EASSIE in RECLAIMING MOTION in the cause ABERDEEN CITY COUNCIL Pursuers and Reclaimers; against ALOK WANCHOO Defender and Respondent: _______ |
Act: S. Smith; Brodies LLP (Pursuers)
Alt: J. Robertson; Drummond Miller (for Andersonbain, Aberdeen) (Defender)
11 January 2008
Introduction
[1] The parties to this reclaiming motion are in dispute as to whether the defender has a servitude right of access and egress for pedestrian and vehicular traffic over an area of ground owned by the pursuers at the junction of Shore Brae and Shiprow, Aberdeen. The pursuers conclude, inter alia, for declarator that such a servitude does not exist. The defender, in his counterclaim, concludes for a contrary declarator that he, and his successors in title in the claimed dominant tenement, do have such a servitude. Following a proof before answer the Lord Ordinary found in favour of the defender, holding that the servitude in question had been duly constituted by the operation of positive prescription. He therefore granted decree of declarator to the effect that the defender is entitled to such a servitude right of access. Against that interlocutor the pursuers have reclaimed.
[2] The facts found by the Lord Ordinary are set out in his Opinion of 19 December 2006 [2006] CSOH 196; 2007 SLT 289[1]. His findings in fact were not subject to any challenge by counsel for the pursuers and reclaimers. The findings particularly pertinent to the issues debated in the hearing of the reclaiming motion may be summarised as follows.
[3] One starts with the topography. The heritable property now owned by the defender consists of warehouse premises (incorporating a former garage) which on their longer dimension extend in a general north to south axis between the street known as Shiprow on the north side and the street known as Trinity Quay on the south. Shiprow is at a higher elevation than Trinity Quay (the land upon which the buildings are built sloping downwards in a southerly direction towards the harbour in Aberdeen). To the west the defender's property is bounded by other buildings also extending generally between Shiprow and Trinity Quay. To the east, however, the defender's property is bounded, at least to a substantial extent, by an unbuilt area of ground owned by the pursuers which has in turn as its eastern boundary the street known as Shore Brae which connects Trinity Quay with Shiprow, rising upwards from Trinity Quay in a generally northerly direction. The unbuilt area of ground is that over which the defender claims to have a servitude right of access. Put briefly, the area forming the putative servient tenement has been in that unbuilt state and generally used as a private car park since well before the commencement of the prescriptive period of twenty years provided for in section 3(2) of the Prescription and Limitation (Scotland) Act 1973 for the acquisition of the servitude right now claimed by the defender.
[4] The defender acquired ownership of the warehouse premises in the course of 2003. So much of his claim to have a servitude right flows from the actions of his predecessor in title, a company named Robert Duthie & Sons Limited - "Duthies" - and the response to those actings by the pursuers' predecessors in title - "the Council".
[5] The relevant history of events begins in about 1975 when the Council carried out alterations to Trinity Quay whereby the previous single carriageway street was turned into a dual carriageway with a central reservation. For Duthies this presented the difficulty that it was no longer practicable for large goods vehicles to enter the warehouse through the entrance to the warehouse from Trinity Quay in order to load and unload the goods necessary for the conduct of Duthies' wholesale grocery and catering supply business, as had been the practice thitherto. The only other entrance to Duthies' premises was from Shiprow, where there was an entrance into the former garage and thence into the warehouse. However, the Shiprow entrance was not high enough to allow the passage of modern large goods vehicles. So Duthies were constrained to have the vehicles park kerbside on either Trinity Quay or Shiprow and there conduct the loading or unloading of the goods. This was understandably far from ideal from Duthies' viewpoint. Nor, evidently, was it by any means ideal from the Council's standpoint. Shiprow, on the northern side of the warehouse, was a narrow street and the parking of large goods vehicles outside the entrance to Duthies' premises for the unloading of goods would often block the street for all other traffic for not insignificant periods. On the other hand, stationary heavy goods vehicles on the eastbound carriageway of Trinity Quay, at the southern entrance to Duthies' premises, were not conducive to the improved traffic flows intended by the construction of the Trinity Quay dual carriageway.
[6] The Lord Ordinary found that in 1974 and 1975 consideration was given within the Council to arranging for access through the unbuilt area - "the site" - that is to say the putative servient tenement, to those who had until then had access from Trinity Quay. (Initially access to a public house, "the Moorings", was also contemplated but the public house eventually dropped out of the picture). For such access to be taken Duthies would require to carry out substantial alterations to their building. In February 1976 Duthies applied to the Council for planning consent and building warrant for those alterations. In paragraph [6] of his Opinion the Lord Ordinary summarises those proposed alterations thus:
"The roof of the garage building was to be raised; and its gable end, which abutted the site, was to be opened up, with large sliding doors opening onto the site. The new doors and the heightened roof would allow vehicles of all sizes, taking access to across the site, to reverse into the garage building and the warehouse to load and unload. Steel supports were needed for raising the roof. The drawing [accompanying the application] shows that one of the columns for this structure was to be positioned in the then existing opening from the garage building into Shiprow, so that, when the work had been carried out, the Shiprow access would be closed even to small vehicles."
[7] Various discussions and communings took place thereafter between officials of the Council inter se and with Duthies and the proprietors of the Moorings. The discussions included the suggestion that Duthies and the proprietors of the Moorings take a lease of the site. In due course a lease of the site for car parking purposes only was concluded between the Council and Duthies. These discussions and negotiations are more fully set out in the Opinion of the Lord Ordinary but we do not consider it necessary at this stage to enter into any of that detail. We would however record that although a contrary contention was advanced to the Lord Ordinary, it was accepted and conceded before us by counsel for the reclaimers that the access user to and from the defender's warehouse premises could not be ascribed to the lease.
[8] In paragraph [7] of his Opinion the Lord Ordinary made the important finding, based on the evidence of Mr. Duthie, that:
" ... there was a meeting between Duthies and several officers of the town council at which it was agreed in principle that Duthies would construct a new entrance facing Shore Brae and would get access to this new entrance across the site. It is not clear precisely when this meeting occurred, but I am satisfied that it took place at latest before or at the beginning of negotiations for the lease. It may have been considerably earlier."
It is also to be noted that in the course of paragraph [24] of his Opinion the Lord Ordinary observes:
"By the time of Duthies' application for planning permission and building warrant in February 1976, the work required to create such a right of access had been worked out in detail (and, indeed, there were only minor alterations to the plans thereafter). It may well have been at about this time that the agreement was reached in principle (at the meeting to which I have referred) that Duthies could take access across the site. I cannot see why they would have progressed the matter so far without such agreement."
[9] In the event, in 1981 Duthies carried out the substantial alterations to the buildings encompassed in the 1976 applications for planning permission and building warrants. They thereafter took access to and egress from their premises via the new large sliding doors slapped into the eastern gable of the former garage part of the warehouse premises over the site. Access and egress took place on a regular and open basis for the purposes of their business. Their use of the putative servient site for such access and egress involved a number of vehicle movements each business day. After Duthies sold the warehouse premises to the defender, vehicular access continued on a frequent and regular basis across the site, and into and out of the warehouse. No challenge to such access user was made by the pursuers or their statutory local authority predecessors until the raising of this action in 2005.
The issues arising in the reclaiming motion
[10] In presenting the reclaiming motion, counsel for the pursuers and reclaimers began by identifying two broad issues with which the reclaiming motion was concerned. The first issue was formulated by counsel as being "whether a right to plead personal bar can be fortified by prescriptive possession in such a way as to establish a servitude right." The second issue was whether the assurance given to...
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