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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
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Lord Nimmo Smith
Lord Philip
Lord Kingarth
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[2006] CSIH 28
XA24/06
OPINION OF THE COURT
delivered by LORD NIMMO
SMITH
in
APPEAL
CANDLEBERRY LIMITED
Pursuers and Appellants;
against
WEST END HOMEOWNERS
ASSOCIATION AND OTHERS
Defenders and Respondents:
_______
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Act: J.J. Mitchell, Q.C.; McGrigors (Anderson
Shaw & Gilbert)
Alt: C. Kelly; Drummond Miller (Davidson & Shirley)
26 April 2006
[1] This
action arises from a neighbourhood dispute in a housing estate at West End,
Carstairs. The pursuers, who are
builders and property developers, own an area of ground which lies to the north
of Balmoral Crescent. The defenders, who are a Homeowners
Association and the office bearers thereof, own various subjects, including a
footpath which runs along the southern boundary of the pursuers' land ("the
footpath"). The pursuers are in the
course of constructing houses on their land.
They claim that they are entitled to a servitude right of access for
vehicular and pedestrian purposes over inter
alia the footpath. The defenders
have placed obstructions in the form of boulders and bollards on a stretch of
footpath at the west end of the southern boundary of the pursuers' land. These obstructions are effective to prevent
vehicular traffic from crossing the footpath.
[2] In
these circumstances the pursuers have raised an action in which they seek inter alia declarator and
interdict. A motion for interim interdict was refused by the
sheriff on 5 October
2005. The sheriff held
that the pursuers had not established a prima
facie case and in any event that the balance of convenience did not favour
the pronouncing of interim
interdict. The pursuers appealed to the
sheriff principal. On 23 December 2005 the
sheriff principal refused the appeal and adhered to the sheriff's
interlocutor. The sheriff principal held
that the pursuers had established a prima
facie case, but having regard to the balance of convenience interim interdict should not be
pronounced. The pursuers have now
appealed to this court. The defenders
have cross-appealed on the question whether the pursuers have established a prima facie case. On 15 March 2006 the case was appointed to the
summar roll and was found to be suitable for early disposal thereon.
[3] This
appeal was heard on 25 and 26 April
2006. On the latter date
we pronounced an interlocutor in terms of which we inter alia refused the cross-appeal by the defenders, allowed the
appeal by the pursuers and recalled the interlocutors of the sheriff and the
sheriff principal. We granted interim interdict against the defenders
from building upon or obstructing or occupying any part of the area
cross-hatched black on the plan annexed to the initial writ, i.e. the stretch
of footpath referred to above, in any manner calculated to defeat, obstruct or
impede the exercise of pedestrian or vehicular access over that area by the
pursuers, their tenants, their employees and invitees. Finally, we remitted the case to the sheriff
to proceed as accords. We said that we
would subsequently issue written reasons for our decision, and we now do so.
[4] All
the subjects with which we are concerned form part of a larger area which was
originally acquired for the purposes of what is now the State Hospital. Streets were laid out and houses were
constructed for occupation by employees there, together with communal
facilities such as a social club and a village hall. Circumstances changed, however. By Deed of Conditions dated 2nd and recorded
GRS Lanark on 16 October 1989 the Secretary of State for Scotland, as the
then heritable proprietor of the area of ground which had originally been
acquired, on the narrative that he was "about to feu part of the said area of
ground in several plots and houses and it is desirable to execute these
presents in order to define (without prejudice to the insertion in individual
conveyances of further special provisions) the rights, interests, obligations
and liabilities of the proprietors of individual houses in the development"
made various declarations and provisions.
By clause FIRST the expression "proprietor" was defined as meaning
"the owner for the time being of any dwellinghouse" and "a feu" was defined as
meaning "a plot of area of ground containing a dwellinghouse or piece of ground
feued off within the whole area". Clause
SECOND made provision for the ownership and maintenance of fences and walls,
clause THIRD imposed an obligation on each proprietor to maintain his feu in
good condition and repair, clause FOURTH imposed an obligation on each
proprietor to keep his feu constantly insured against loss or damage by fire,
clause FIFTH provided that "each feu presently containing a dwellinghouse"
should be used as a self-contained dwellinghouse only and clause SIXTH provided
inter alia that ground appertaining
to each feu which was not built upon should be used exclusively as ornamental
or garden ground or as a drying green, except for minor erections with the consent
in writing of the superiors.
Clause SEVENTH (A) provided:
"The roads,
footpaths, drains, sewers, street lighting and open spaces and any area of
ground within the whole area but not part of a feu ('the public areas' which
are shaded yellow and pale green on the plan annexed and executed as relative
hereto) shall be maintained in a neat and tidy condition and in good order and
repair all to the reasonable satisfaction of the superiors unless and until the
public areas or any part of them are conveyed to or are taken over by any
public authority for maintenance... Each
proprietor shall have a heritable and irredeemable right of access for
vehicular and pedestrian purposes over the 'public areas' which are shaded in
yellow and pale green on the aforesaid plan...".
Clause SEVENTH (B) made
provision for the convening of meetings of all the proprietors of feus within
the whole area. Clause EIGHTH
reserved certain powers to the superiors.
Clause NINTH entitled the superiors to call on any proprietor to
produce his title. Clause TENTH
provided for the resolution by arbitration of all questions, differences and
disputes which might arise among the proprietors or any of them regarding the
matters set forth therein.
Clause ELEVEN provided for irritancy of any feu in respect of which
the proprietor had contravened or failed to implement any of his
obligations. The clause also provided:
"[T]he
whole reservations, burdens, conditions and others herein contained shall be
real liens, burdens and servitudes upon and affecting the said whole area and
any part thereof so far as the same applies thereto and as such are appointed
to be inserted in any infeftment that may follow... and also inserted or validly
referred to in all deeds or instruments relating to any part of the whole
area...".
[5] On
the plan annexed to the Deed of Conditions was an area marked as "open grassed
and play area retained by hospital".
This area of ground, extending to 1.3 acres or thereby, was
conveyed by the Scottish Ministers, the successors to the Secretary of State
for Scotland as
heritable proprietors thereof, to the pursuers by Feu Disposition dated 30 August 2000 and was
registered in the Land Register on 6 February 2001.
In the Feu Disposition the subjects included "the whole parts, privileges
and pertinents of the subjects hereby disponed and our whole right, title and
interest, present and future, therein and thereto". In the relative Land Certificate the property
section described the subjects as "subjects on the north side of Balmoral
Crescent, Carstairs, Lanark edged red on
the Title Plan". The Feu Disposition was
granted with and under, insofar as still valid, subsisting and applicable, the
burdens, conditions and others referred to in inter alia the Deed of Conditions and also with and under
obligations relating to the construction by the pursuers of dwellinghouses on
the subjects. In the burdens section of
the Land Certificate these were set out ad
longum, including the entire provisions of the Deed of Conditions.
[6] By
Disposition dated 20 June 2003 and registered in the Land Register on
10 December 2003 the Scottish Ministers conveyed to West End Homeowners
Association subjects which may be broadly described as the roads, footpaths and
other open spaces in the area covered by the Deed of Conditions which had not
previously been sold off. The subjects
were sold "together with the parts, privileges and pertinents and our whole
right, title and interest, present and future, in and to the subjects and other
hereby disponed and our whole right, title and interest, present and future, in
and to the dominium directum thereof." The subjects were also disponed with and
under, insofar as still valid, subsisting and applicable, the burdens,
conditions and others specified or referred to in inter alia the Deed of Conditions and also with and under further
obligations, including an obligation that certain areas shaded in yellow on the
plan should be used as roads and pathways and other areas shaded green and blue
should be used as open amenity areas only.
It is not necessary to refer to the description of the subjects in the
property section in the relative Land Certificate, as it is not in dispute that
they include the footpath with which we are concerned. In the burdens section some, but not all, of
the provisions of the Deed of Conditions were set out ad longum, some of the clauses being renumbered. The full terms of clause SEVENTH in the
Deed of Conditions were set out, renumbered as SECOND.
[7] It
is convenient at this point to give a brief account of the factual information
which is available to us. It appears
from the description of the subjects conveyed to the pursuers by the Feu
Disposition that the southern boundary, including a curve at the south west
corner, was about 170 metres long.
Balmoral Crescent (called Balmoral Drive in the plan annexed to the Deed
of Conditions), which has a footpath on either side, runs from approximately
west to east from this corner to a point about halfway along the original boundary,
where it bends to the south east for a distance before again bending east. There is thus a roughly triangular area of
ground to the northeast of this part of Balmoral
Crescent.
This belongs to a Mr Bose.
He is in some way connected with the pursuers, though the nature of the
connection was not explained to us. He
is well-disposed towards the pursuers and willing to facilitate their
activities. He is engaged in
redevelopment of the area owned by him, on which the social club and the
village hall were originally built.
There is a paved parking area towards the west end of Mr Bose's
land. It is entered by a bell-mouth from
Balmoral Crescent. It is separated from the footpath by a low
kerb. The footpath thus lies between the
pursuers' land and Mr Bose's land.
[8] The
pursuers are in the course of developing their land. They have so far obtained planning permission
for the erection of seven dwellinghouses, of which six have been
constructed. We shall refer to them by
their original plot numbers, rather than the house numbers which they appear to
have been given but as to which we have incomplete information. The houses on plots 1 to 5 have been sold by
the pursuers to individual purchasers.
These five houses have frontages on Balmoral Crescent, extending from
the south west corner of the area of land originally purchased by the pursuers
to approximately the point at which Balmoral Crescent bends to the south east
away from the boundary, i.e. about 85 metres from the corner. The frontage of plot 6 faces more or
less onto the small triangle of Mr Bose's land to the west of the parking
area, i.e. at the western apex of his land, and the frontage of plot 7
faces onto the paved parking area. If
circumstances permitted, it would be possible to obtain vehicular access across
the footpath from Balmoral Crescent to
plot 6 at a point near the western apex of Mr Bose's land, and to
plot 7 from the paved parking area on his land.
[9] Balmoral Crescent, including
the footpaths on either side of the roadway, has been taken over by the local
authority. There is a dispute of fact as
to whether the footpath on the north side of the Balmoral
Crescent outside plots 1 to 5 was
taken over by the local authority before or after the construction of the
dwellinghouses on these plots. While
these dwellinghouses were being constructed, construction traffic crossed this
footpath, and now that they have been sold and have been occupied by the
individual purchasers domestic vehicular traffic crosses it, since there is
space to park cars on each of the plots.
It is noteworthy that the defender Robert Niven lives at plot 5,
and in some of the photographs before us it is apparently his car which can be
seen standing on his land in front of his house.
[10] A pedestrian setting out from the west end of Balmoral
Crescent along the footpath on the north
side would thus, as is commonplace in built-up areas, have to allow for the
possibility of vehicles crossing it from the roadway to plots 1 to 5. If the pedestrian then followed Balmoral
Crescent round the bend to the south east,
the next point to take account of would be the bell-mouth to the paved parking
area. There are thus a number of points
at which the pedestrian would need to take account of vehicles.
[11] As has been seen, from the point at which Balmoral Crescent
bends to the south east, the footpath which belongs to the defenders proceeds
eastwards along the southern boundary of the pursuers' land, past plots 6
and 7, to the south east corner, where it forms a T-junction with another path,
the northern arm of which goes to Woodside Avenue and the southern arm of which
goes to Balmoral Crescent further to the east.
There was no clear information as to the amount of pedestrian traffic
over the footpath. Senior counsel for
the pursuers told us that there was at one time a tarred surface, which had
deteriorated, and we did not understand counsel for the defenders to contradict
this. What is reasonably clear, from the
photographs before us, is that any pedestrian wishing to use this footpath
would have to negotiate the boulders which have been placed there by the
defenders, which take up more or less the entire width of the footpath outside
the entrance to plot 6. It is not
easy to see how a mother with young children, for example, could readily use
the footpath at this point.
[12] As already mentioned, the dwellinghouse on plot 6 has been
constructed. The pursuers entered into
missives to sell it to a Mrs Todd.
It has not, however, been possible for the transaction to be completed
because as matters stand the pursuers are not able to assure her of vehicular
access from Balmoral Crescent to the
property. This is because of the
boulders already mentioned, and bollards which the defenders have placed in the
ground at the entrance, effectively blocking all but pedestrian access to
plot 6. Mrs Todd wishes, if
possible, to proceed with the transaction.
Senior counsel for the pursuers told us that the missives have been
"kept open", and Mrs Todd meanwhile occupies the house on a short assured
tenancy. She is able to park her car for
the time being on the paved parking area on Mr Bose's land. The pursuers obtained planning permission for
the construction of a dwellinghouse on plot 7 without objection from the
defenders. They have, however, been
unable to proceed with construction because of the presence of the line of
boulders placed along the footpath by the defenders. The most obvious route for both construction
traffic and subsequent domestic vehicular traffic into plot 7 is from the
paved parking area on Mr Bose's land, but the line of boulders obstructs
this route as well. What the pursuers
propose is that vehicular access to both plots 6 and 7 should be across
the footpath. The pursuers propose to
make up the footpath at the entrances to plots 6 and 7 to a standard
capable of bearing vehicular traffic.
[13] Why do the defenders object to what the pursuers propose, to
the extent that they have placed substantial obstructions, in the form of
boulders and bollards, in their way?
Counsel for the defenders said that they objected to vehicles crossing
the footpath, because they owned it and in terms of the titles it was to be
used as a footpath and not for vehicular traffic. In a newsletter circulated by the defenders
on 16 September 2005, however,
there is a passage:
"Mr Bose
knows that he has to purchase a legal access to Plots 6 & 7 over our
private property and is doing his best to avoid payment to you as the West End
Homeowners Association."
When pressed about this, counsel
for the defenders finally accepted that the true dispute was as to whether the
pursuers were entitled to a servitude right of vehicular access across the
footpath without having to make any payment to the defenders. He did not indicate how much money would be
sufficient to secure the defenders' agreement, assuming it to be required. There appears to have been some
correspondence between the parties, but no meaningful negotiation. Once the defenders had placed obstructions on
the path, on 19
September 2005, the raising of the present action by the pursuers a
few days later became inevitable.
[14] The question whether an interim
interdict should be pronounced depended on whether the pursuers were able to
establish a prima facie case that
they were entitled to a servitude right of vehicular access across the path
and, if so, whether the balance of convenience was in their favour. The strength of the prima facie case, if established, was a factor in the balance of
convenience: Toynar Ltd v Whitbread &
Co plc 1988 S.L.T. 433, following the dictum of Lord Fraser in NWL Ltd v Woods [1979] 1 W.L.R. 1294 at p.1310. In Group
4 Total Security Ltd v Ferrier
1985 S.L.T. 287, followed in Toynar Ltd v
Whitbread & Co plc, it was said
that the court should not reach a concluded decision on legal arguments at the
stage of a motion for interim interdict,
as this might well foreclose the case when the pleadings had not been adjusted
and closed. All that the court could do
at this stage was to form a prima facie
view on the arguments and the pleadings as they stood. There is also useful guidance in Falkirk Council v Central Regional Council 1997 S.L.T. 1242, where it was held that
although there were many cases where disputes on fact arose between the parties
which could not be determined until the final stage of the proceedings, that
situation would not normally prevent a court from deciding that a sufficient prima facie case was averred so as to
justify interim suspension or interim interdict, provided also that
the balance of convenience favoured such a decision. There are examples of cases in which the
primary question is one of law, such as the construction of a document, on
which the court is able to reach a view without the need for pleadings or
evidence: see for example VA Tech Wabag UK Ltd v Morgan Est (Scotland) Ltd 2002 S.L.T.
1290.
[15] It is a question of law whether the pursuers are entitled to a
servitude right of vehicular access across the path. This question falls to be determined by
reference to the provisions of the Deed of Conditions and of the registered titles
of the pursuers and the defenders, against the background of the general law of
conveyancing. The sheriff held that
"mention of a right of access in a Deed of Conditions in itself does not
operate as a grant of that right of access in favour of a particular
purchaser." He said that something more
was needed to convey that right to the purchaser. The dispositive clause of the Feu Disposition
in favour of the pursuers did not make specific mention of the servitude rights
of access set out in the Deed of Conditions.
On the question whether such servitude rights of access could be
regarded as a pertinent and thus carried by the dispositive clause, the sheriff
said:
"I accept
that once servitudes are properly constituted in favour of the owner of the
dominant tenement they become pertinents of the dominant tenement. A servitude cannot however be described as a
pertinent before it is properly granted.
In the case of a servitude contained in a Deed of Conditions it is only
when it is conveyed in some way to the owner of the dominant tenement that it
can be described as a pertinent of the dominant tenement as only then is it
properly constituted in favour of the owner.
Pertinents cannot encompass rights that do not exist or are not properly
constituted. The use of the expression
pertinents in the Feu Disposition does not therefore advance the pursuers' case."
The sheriff therefore reached the
conclusion that it had not been shown that the rights of access specified in
the Deed of Conditions had been constituted in the pursuers' favour, so the
pursuers had not demonstrated a prima
facie case. The sheriff went on to
hold that in any event he would have found that the balance of convenience lay
in the defenders' favour. He said inter alia that what was proposed was a
significant change from pedestrian use to vehicular access including access for
construction traffic. He laid emphasis
on a contention for the defenders that the pursuers were seeking to increase
the burden beyond what was acceptable.
He also said that it was probable in the circumstances that the sale to
Mrs Todd would not go ahead, and that the pursuers would find it difficult
to sell either of the houses on plots 6 and 7 while the action was a live
issue and so long as it remained defended.
It should be noted that the sheriff was not invited to and did not base
his decision on the terms of the defenders' title.
[16] By the time of the appeal to the sheriff principal the parties
had both come to be represented by the same counsel as appeared before us, and
a fuller argument was deployed on behalf of the pursuers, making reference to
the defenders' title as well as that of the pursuers. The arguments which were addressed to the
sheriff principal were similar to those addressed to us, and are reflected, so
far as necessary, in the remainder of this opinion. The sheriff principal reached the view that
the sheriff was wrong to conclude that there was no case to try without full
pleadings, productions and proven facts.
He said:
"I consider
that, on the basis of the arguments and ex
parte statements which were placed before me and which I have set out in
full, both sides have respectable arguments to place before the court. There is clearly a case to try. I consider the appellants have demonstrated a
prima facie case."
He went on to say that the final
resolution of the issue between the parties must await a determination of the
case with a Closed Record, productions, evidence if necessary and citation of
authority. There is no indication in the
sheriff principal's judgment of the evidence which might affect the
determination of the question of law outlined above.
[17] Having held that the pursuers had demonstrated a prima facie case, the sheriff principal
went on to hold that, in light of the material which the sheriff had set out,
he was entitled, in the exercise of his judicial discretion, to conclude that
the balance of convenience favoured the refusal of interim interdict. He said
that on the information placed before the sheriff, he was entitled to reach the
conclusion which he did on the balance of convenience. The sheriff principal made it clear that he
regarded his task as being review of the exercise of the sheriff's
discretion. In respect of additional
matters which the parties had sought to place before him, he said:
"I am
reviewing the sheriff's decision. In my
opinion, unless I were to take the view that his decision fell to be set aside,
I cannot have regard to these matters in this appeal. I accordingly do not propose to do so."
[18] In respect of one of these matters the sheriff had, in the
absence of detailed argument, reserved his opinion. This was the question whether the pursuers
can be regarded, on a proper construction, as falling within the expression
"proprietor" in the Deed of Conditions, where the definition was "the owner for
the time being of any dwellinghouse". We
were favoured with fuller submissions.
Counsel for the defenders submitted that this did not extend to the
owners of plots of land in which no dwellinghouse had been erected by the date
of the Deed of Conditions. In our
opinion this cannot be correct. The Deed
of Conditions was looking to the future, on the narrative that the Secretary of
State for Scotland was "about
to feu part of the said area of ground in several plots and houses". The definition of the expression "a feu"
included the words "piece of ground feued off within the whole area". The Deed of Conditions created a bundle of
mutual rights and obligations, and its terms disclose no intelligible reason
for excluding from its scheme plots on which dwellinghouses had not yet been
constructed. The drafting of the Deed of
Conditions is not entirely satisfactory, but on the construction which we favour
"proprietor" extends to the owner of a plot of land on which a dwellinghouse is
to be constructed. In any event, as
senior counsel for the pursuers pointed out, the pursuers have constructed a
dwellinghouse on plot 6, which is still part of the whole area of land
owned by them, and accordingly would fall within the narrower interpretation of
"proprietor" contended for by counsel for the defenders.
[19] Another point of construction which it is convenient to mention
at this stage arises from the sheriff's view that what is proposed in respect
of the footpath is a significant change from pedestrian use to vehicular
access. It is not clear what the sheriff
meant by this. It can of course be seen
from the colouring of the plan annexed to the Deed of Conditions that this is a
footpath. If the proposal were that
vehicles should travel along it, there might be justification for the sheriff's
view. But the proposal is that traffic
should cross the footpath, and in this regard the position is no different from
what has been happening outside plots 1 to 5. The words in the Deed of Conditions
conferring on each proprietor a "right of access for vehicular and pedestrian
purposes over the 'public areas'" require to be given a purposive
construction. It is not inconsistent
with the pedestrian use of a footpath that vehicular traffic should cross it in
exercise of a right of access from the road to individual plots.
[20] We do not therefore accept that, on a proper construction of
the provisions of the Deed of Conditions, the pursuers are not entitled to the
vehicular right of access which they claim, provided that they can succeed on
the more fundamental question whether they are entitled to exercise any of the
rights thereunder.
[21] Counsel for the defenders sought to persuade us that the
sheriff principal should not have held that the sheriff erred in concluding
that the pursuers had not established a prima
facie case that they were entitled to the benefit of a servitude right of
vehicular access over the footpath. It
was suggested that this was a matter for the discretion of the sheriff. We do not agree, because this is a question
of law on which a view can be formed without the exercise of a discretion and
without further enquiry. Since we agree
with the sheriff principal that the pursuers have indeed established that they
have a prima facie case, we shall
give our reasons only briefly.
[22] The starting point for any discussion is that (subject to
questions of construction which we have already discussed) the Deed of
Conditions is apt to apply to both the land owned by the pursuers and the land
owned by the defenders. Section 32
of the Conveyancing (Scotland) Act 1874 (repealed with effect from 28 November
2004 by Schedule 15 to the Title Conditions (Scotland) Act 2003, but in
force at all material times) enabled a deed, such as the present Deed of
Conditions, to be recorded and the reservations, real burdens, conditions,
provisions, limitations, obligations and stipulations set forth in it to be imported
in whole or in part by reference into any subsequent deed or conveyance. There are numerous authorities on the manner
in which a positive servitude might be constituted. For convenience we refer to Balfour v Kinsey 1987 S.L.T. 144, in which Lord Sutherland reviewed these
authorities and concluded that a positive servitude might be constituted in the
recorded title of either the dominant or the servient tenement and was
effective against singular successors even without proof of possession. Putting these matters together, it appears to
us that, if a Deed of Conditions was apt to create a positive servitude, it
might then be imported by reference into the recorded title of either the
dominant or the servient tenement and thus become enforceable by the owner for
the time being of the dominant tenement.
Counsel for the defenders referred to Braid Hills Hotel Co Ltd v Manuels
1909 SC 120 per Lord President Dunedin at p.126: "You have first of all got to discover from
the servitude itself that there is a proper dominant tenement." No doubt at the date when the Deed of
Conditions was recorded and all the original area of land was in the ownership
of the Secretary of State for Scotland it could
not be said that there were a dominant and a servient tenement. But not only is the relevant provision of the
Deed of Conditions set out in the burdens section of the pursuers' Land
Certificate, it is also set out in the burdens section of the defenders' Land
Certificate. There is no obvious reason
why the pursuers' land should not have become the dominant tenement on the
registration of the Feu Disposition in their favour.
[23] Counsel for the defenders submitted that the effect of
referring to the Deed of Conditions in the burdens clause but not in the
dispositive clause of the Feu Disposition was that the obligations but not the
rights created by the Deed of Conditions transmitted to the pursuers. To transmit both, there required to be two
references, in each of the dispositive and the burdens clauses. We have quoted enough from the Deed of
Conditions to show that it is by no means a simple task to unbundle the rights
and the obligations. We were referred to
no authority which would vouch the proposition that express reference to the
Deed of Conditions required to be made in two clauses of the Feu Disposition.
[24] Moreover, the defenders' title would suffice for the
purpose. Counsel for the defenders did
not dispute that this would have been so under the law as it stood prior to the
enactment of the Land Registration (Scotland) Act 1979, but he submitted that
the position was less clear in light of section 17 thereof (repealed with
effect from 28 November 2004 by Schedule 15 to the 2003 Act). Section 17(1) provided that a land
obligation specified in a deed (i.e. Deed of Conditions) executed after the
commencement of the 1979 Act under section 32 of the 1874 Act should
on the recording of such deed in the
Register of Sasines and on the obligation being registered become a real
obligation affecting the land to which it related, unless it was expressly
stated in such deed that the provisions of section 17 were not to apply to
that obligation. We were referred to a
number of passages in the writings of distinguished academic authors, and we
can find no support in them for the suggestion that section 17 altered the
long-standing rule that a positive servitude could be registered against either
the dominant or the servient tenement.
[25] What did alter the position, in the case of positive
servitudes, was section 75 of the 2003 Act, effective from 28 November 2004, which
provides by sub-section (1) that a deed is not effective to create a
positive servitude by express provision unless it is registered against both
the benefited property and the burden property.
This is not the last word: see
the Scottish Law Commission Discussion
Paper on Land Registration:
Miscellaneous Issues (Discussion Paper No.130, December 2005). While section 75 is not of direct
relevance, it does reinforce the point that we have already made, that anybody
researching the title of either the pursuers or the defenders would have their
attention directed to the provisions of the Deed of Conditions, and would thus
be able to see that, among other mutual rights and obligations, it confers servitude
rights of access on the individual proprietors.
It is hard to see what more could be needed. We would add that, while it is ultimately for
the court to determine whether this is right, we note that the views we have
expressed appear to be consistent with those of the Registers of Scotland. There has been correspondence between the
pursuers' solicitors and the Pre-Registration Enquiries Section of the
Edinburgh Office of the Registers of Scotland, and in a letter dated
2 November 2005 an Advisor stated:
"I fail to
see any problem in this case as the deed of conditions clearly constitutes the
right of access for the benefit of each 'proprietor', which will include your
purchaser [presumably Mrs Todd]."
For these reasons we consider that
the pursuers are able to establish what we would go so far as to describe as a
strong prima facie case.
[26] This leaves the question of the balance of convenience, which
we have no hesitation in deciding in the pursuers' favour. What the sheriff had to say about this was
obiter, once he had decided that the pursuers had not established a prima facie case. Moreover, because of this, he did not take
account of the strength of any prima
facie case in deciding the balance of convenience. In our opinion the sheriff principal therefore
erred in treating this as falling within the exercise of the sheriff's
discretion. The matter is open to us for
reconsideration. The pursuers have
planning permission for the construction of a house on plot 7. They are bound to suffer economic loss if
there is any further delay. There will
be obvious difficulties in recovering damages from the defenders, who are an
incorporated association with a membership of about 130. If the boulders and bollards are removed to
enable construction traffic to proceed, the footpath will be more convenient
for pedestrians than it is at present.
Construction operations will have to be conducted with due regard for
the safety and convenience of members of the public, including pedestrians who
might be affected by construction traffic crossing the footpath. The situation relating to plot 6
requires to be resolved, so that Mrs Todd's purchase can proceed. If (which we doubt) the defenders are
entitled to payment of any sum of money, that will not be affected by our
having pronounced interim interdict.
[27] We do not purport to have expressed a concluded view in this
opinion. Apart from anything else, the
declarator and interdict which the pursuers seek are in broader terms than the interim interdict which they sought and
we granted. But we hope that we have
said enough to reinforce our observations in court, that this is a dispute
which ought to be resolved. It cannot be
in the interests of the neighbourhood that it be prolonged, and we would
encourage a resolution by compromise, perhaps with the assistance of a
mediator.
