Johnston v Davidson

JurisdictionScotland
CourtSheriff Appeal Court
JudgeSheriff Principal DL Murray,Sheriff WH Holligan,Sheriff SF Murphy
Judgment Date05 November 2020
Docket NumberNo 2

[2020] SAC (Civ) 22

Sheriff Principal DL Murray, Sheriff WH Holligan and Sheriff SF Murphy QC

No 2
Johnston
and
Davidson
Cases referred to:

Alvis v Harrison 1991 SLT 64; (1991) 62 P & CR 10

Ewart v Cochranes (1861) 23 D (HL) 3

Kennedy v Macdonald 1988 GWD 40-1653

Moncrieff v Jamieson [2007] UKHL 42; 2008 SC (HL) 1; 2007 SLT 989; 2007 SCLR 790; [2007] 1 WLR 2620; [2008] 4 All ER 752; [2008] 1 P & CR 21; [2007] 43 EG 200 (CS); (2007) 151 SJLB 1368; [2007] NPC 106; [2008] 1 P & CR DG6

Russell v Cowpar (1882) 9 R 660

Heritable property and conveyancing — Servitude — Right of access — Extent of servitude — Whether express grant of right of access provided right of vehicular access — Whether ancillary right to park a vehicle was necessary for comfortable enjoyment of the right

Bradley Johnston raised proceedings in the sheriffdom of Tayside, Central and Fife at Forfar seeking, inter alia, declarator in respect of his rights of access over an area of ground adjacent to his property. The cause called before the sheriff (G Murray) for proof before answer on 21 June and 11 July 2019. On 13 December 2019, the sheriff granted declarator and other orders. The defenders appealed to the Sheriff Appeal Court.

The pursuer and the defenders were owners of adjoining semi-detatched cottages. The properties were set back from and perpendicular to a single carriageway road, with no parking available on either side of the road. Title to the pursuer's property, which was registered in the Land Register, included “a heritable and irredeemable servitude right of access” over an area of ground between the road and the properties. The area of ground was owned by the defenders. The pursuer and his predecessors had driven on to and parked cars on the area of ground for approximately ten years. Subsequently, the defenders planted a tree and erected a fence and bollards on part of the ground, restricting access.

The pursuer raised an action for declarator at Forfar Sheriff Court. After proof before answer, the sheriff held that the pursuer's right included a right of vehicular access and a right to park on the area of ground between the road and the properties. The sheriff granted declarator in terms thereof and ordained the defenders to remove the tree, fence and bollards erected on the area of ground. The defenders appealed.

The defenders argued that the sheriff had erred in construing the express grant of servitude by taking into account the question of what was necessary for the comfortable enjoyment of the right.

The pursuer contended that the sheriff had applied the correct approach to interpretation, and in any event, that the sheriff's decision was correct having regard to his findings of fact.

Held that: (1) the correct approach to determining the nature of the right was to apply a two stage approach, in order to determine: (i) the nature of the right conferred by the express grant and (ii) what ancillary rights were necessary for the comfortable enjoyment of the servitute (paras 26, 28); (2) the sheriff had erred: (i) by failing to address clearly what was meant by the express grant of the right and (ii) by conflating the test to determine ancillary rights with the correct test of interpretation of the express grant (para 27); (3) the proper interpretation of the express grant gave rise to a right of vehicular access over the disputed area of ground (para 30); (4) there was sufficient evidence that an ancillary right to park cars was necessary for the comfortable enjoyment of the right (para 35); and appeal refused.

Moncrieff v Jamieson 2008 SC (HL) 1 explained.

The cause called before the Sheriff Appeal Court, comprising Sheriff Principal DL Murray, Sheriff WH Holligan and Sheriff SF Murphy QC, for a hearing, on 1 September 2020.

At advising, on 5 November 2020, the opinion of the Court was delivered by Sheriff Principal DL Murray—

Opinion of the Court— [1] This case concerns a dispute over the interpretation of the terms of an express servitude and the rights which stem therefrom. Following proof before answer the sheriff issued a judgment, dated 29 August 2019, and after hearing further submissions, on 13 December 2019, granted declarator in the following terms:

‘[T]hat the Pursuer, as heritable proprietor of the subjects at 16 Fox Street Carnoustie (registered in the Land Register for Scotland under title number ANG31127) has–

  • a. a right of vehicular access over, and

  • b. a right to park on those parts of the Defenders' property at 14 Fox Street Carnoustie (registered in the Land Register for Scotland under title number ANG8928) which are shown coloured blue and brown on the Pursuer's title plan as they lead west from Fox Street up to the point at which they meet the eastern boundary of the Defenders' garden and the path leading to the parties' front doors.’

The sheriff further ordained that the defenders should remove the tree, fence and bollards on the said parts of their property so that the pursuer may exercise the said rights, and found the defenders liable to the pursuer in the expenses of the action except in so far as previously awarded.

[2] Fox Street is a narrow single carriageway which leads south from Carnoustie High Street. It is a dead end which terminates in an underpass beneath the main East Coast railway line. Double yellow lines are painted on both sides of the carriageway. Residential properties line both sides of the carriageway, some of which have parking spaces. Since at least 1997 it has not been possible to park a vehicle in the carriageway without blocking the road. Set back at right angles from its western side are two semi-detached cottages. The pursuer is the proprietor of the western property no 16, and the defenders are the proprietors of the eastern property, no 14. Access to nos 14 and 16 can only be taken from Fox Street over the disputed area (shown blue and brown on the pursuer's title plan) and then by a path which leads west from the disputed area past the entrance doors to nos 14 and 16. The path then turns south where it leads to the garden and back door of no 16. The defenders own the path from the western portion of the disputed area up to the gable which separates no 14 from no 16, and the pursuer owns the remainder of the path.

[3] Prior to 1997, and the acquisition of nos 14 and 16 by two local property developers David Soutar and George Soutar, different access arrangements applied. The matters in contention arise from the access arrangements established by the Soutars when they conveyed nos 14 and 16. The 1997 disposition in favour of the Soutars reserved ‘a heritable and irredeemable servitude right of access for pedestrian and vehicular purposes’ to the proprietors of 18 Fox Street. The Soutars undertook the extension and renovation of the two cottages. Following completion of the redevelopment of no 16 this was sold to two local residents Mr Duncan and Ms Brown. The disposition giving effect to the sale was dated 21 October 1998 and registered in the Register of Sasines for the county of Angus on 3 November 1998. That deed, inter alia, conveyed:

‘[A] heritable and irredeemable servitude right of access in common with the Disponer and their successors as proprietors of the adjoining subjects known as and forming Fourteen Fox Street, aforesaid, over the area of ground extending to Ninety nine square metres and Fifty eight decimal or One-hundredth parts of a square metre or thereby being the area of ground shown coloured pink on the said plan annexed hereto.’

The Soutars subsequently completed the extension of no 14 which they sold following advertisement. That sale was effected by registration in the Land Register of Scotland with title no ANG8928: the title sheet records that the burdens comprised the 1997 and 1998 servitudes. On 16 July 2004 the pursuer purchased no 16 from Mr Duncan and Ms Brown and that transaction resulted in the registration of no 16 in the Land Register (ANG31127). The property section included:

‘(TWO) a heritable and irredeemable servitude right of access in common with the proprietors of the adjoining subjects 14 Fox Street, aforesaid, over the area of ground tinted brown and blue on the said plan.’

[4] The parties agree that the pursuer's servitude right derives from the express grant contained in the said disposition of 16 Fox Street by David Soutar and George Soutar in favour of Stewart Duncan and Linsey Brown. The area of ground coloured brown and blue is referred to as ‘the disputed area’. The two colours are explained by the fact that the eastern area which is nearest Fox Street (coloured blue) is also subject to the separate servitude right of access for the benefit of no 18. It is convenient at this point to record a number of the findings in fact made by the sheriff which parties confirmed were not matters of contention. The occupiers of properties in Fox Street without parking spaces must park their vehicles elsewhere. There is sufficient space in the disputed area to park at least four vehicles. The Soutars intended, following the redevelopment of nos 14 and 16, that the purchasers would have the right to park in the disputed area. They believed that off-street parking areas made the properties more desirable to prospective purchasers. Prior to the sales of nos 14 and 16 David Soutar made the purchasers aware of that intention. After he purchased no 16, Mr Duncan parked his car in the disputed area, and after they purchased no 14 Mr Christie and Miss Hill also parked on it. Since they purchased no 14 the appellants have parked on it.

Submissions
Appellants

[5] Counsel for appellants invited the court to recall the interlocutors of the sheriff of 29 August 2019 and 13 December 2019; to repel the respondent's pleas in law and to grant decree of absolvitor. Counsel adopted his written submissions and sought to make additional points in oral submission in response to...

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