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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
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Lord Osborne
Lord Eassie
Lady Paton
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[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:
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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. 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 Duthies respecting access was capable of being separated
from the discussions concerning the lease;
or more particularly, whether the assurance or agreement in principle which
the Lord Ordinary found in para. [7] of his Opinion, to which we have referred,
was superseded by the lease or was to be seen as a derogation or waiver
therefrom. In his response, counsel for
the defender and respondent proceeded on the basis that there were these two
discrete issues, although he did not agree with the precise formulation of the
first of these issues.
The first issue
[11] In advancing
his argument on the first issue counsel for the pursuers and reclaimers
submitted four propositions, the first two of which he took together. Neither is controversial. They are:
"1. Possession
of the claimed servitude must be taken as of right, if it is to
found a basis for establishing a
servitude by prescription.
2. Possession
as of right must be unequivocably referable to the
putative servitude right and not some
other basis such as contract, lease, or mere toleration."
The authorities in support of these propositions to which we
were referred were McGregor v Crieff Co-operative Society Limited 1915 SC (HL) 93; Hamilton v McIntosh Donald
Limited 1994 SC 304; Houstoun v Barr 1911 SC 134; Nationwide
Building Society v Walter D. Allan
Limited, unreported, 4 August 2004 (Lady Smith); Gordon
on Scottish Land Law, paragraph 24-46 and Cusine and Paisley - Servitudes and Rights of Way, paragraphs 10-19
and 10-20; and the Prescription and
Limitation (Scotland) Act 1973, section 3(2).
[12] Counsel for
the reclaimers also bracketed together his third and fourth propositions. They were:
"3. The
Lord Ordinary erred in concluding that possession taken other than
by way of toleration must have been
taken as of right.
4. The
Lord Ordinary erred in holding that any right of access founded on
personal bar could be used to set up
a different right, namely a right of servitude."
The principal focus by far of counsel's submissions was on
the latter of those two propositions.
For an understanding of that complaint of error on the part of the Lord
Ordinary we were taken to paragraph [24] of the Lord Ordinary's Opinion, which
includes the passage to which we have already referred but which for
convenience we include again in the following quotation:
"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.
Clearly they would not have carried out the considerable work in raising
the roof of the garage building and installing the large double doors in the
gable end of that building unless they had received an assurance that they
could take access across the site. It
matters not that the assurance or agreement in principle was not reduced to
writing. It would have been sufficient
to entitle Duthies to succeed in a plea of personal bar in answer to any
attempt by the Council to prevent them using the access across the site. To that extent, it is clear that the access
taken by Duthies was taken 'as of right' and not simply by tolerance of the
part of the Council."
[13] Counsel's
criticism was largely directed to the final two sentences of the passage which
we have just quoted. We hope that we do
no injustice to his submission in saying that it proceeded upon a construction
of those sentences to the broad effect that the Lord Ordinary had taken Duthies'
ability to have pled personal bar against the Council as the mechanism by which
the access enjoyed by Duthies proceeded "as of right". But, said counsel, the "right" to plead
personal bar was not a right of the appropriate kind to found a claim to
possession of a servitude. Pleading
personal bar was an "immunity right"; it
was a shield, not a sword; and therefore
could never found a servitude. Counsel
went on to say that at best for the defender (after the alterations) one was
talking of a personal right enforceable only by Duthies and only against the
Council. However, it was said, for the
operation of the positive prescription, the right relied upon during the
prescriptive period had to be a servitude right binding on singular
successors. In support of this criticism
of the Lord Ordinary's reasoning, counsel for the reclaimers drew attention to
the commentary on the Lord Ordinary's decision to be found in Reid and Gretton; Conveyancing 2006, at page 122.
[14] For his part, Mr.
Robertson, counsel for the defender and respondent, hastened to make plain that
it was not the contention of the defender that the right to plead personal bar
in a question with the Council was what founded the claim to possession of the
servitude for the requisite prescriptive period. If, said counsel, the Lord Ordinary were to
be read as saying that a servitude might be constituted by personal bar, as anglicé a form of "proprietary estoppel",
that was not the defender's position.
Counsel for the defender agreed that personal bar was a shield. If by allowing Duthies to proceed with the
alterations to the buildings on the basis of their assurance that access would
be granted the Council had barred themselves from objecting to access in terms
of that assurance, that was, put colloquially, "their worry" and to that extent
some of the concerns expressed in the commentary were misplaced. But it was not suggested that the ability to
plead personal bar against the Council could have availed a singular successor
(to either the Council or Duthies) before the expiry of the prescriptive period. Whether access was being taken "as of right"
was to be tested objectively, not simply by issues such as personal bar, but
having regard to all the circumstances - cf McInroy v Duke of Athole
(1891) 18 R (HL) 46. The volume and
frequency of the traffic was a useful pointer to whether access was taken as of
right rather than by mere toleration.
Mr. Robertson referred to Gordon
on Scottish Land Law, paragraph 24-49;
and Cusine and Paisley paragraph
10-19; and also referred, in the
analogous context of public rights of way, to Cumbernauld and Kilsyth District Council v Dollar Land (Cumbernauld) Limited 1992 SC 357, 1993 SC (HL) 44. In the present case the circumstances of the
alterations to Trinity Quay, which gave rise to the need to devise a new means
of access; the permanency of the
building operations; and the volume and
frequency of the access which was being taken, all indicated plainly that the
access was being exercised "as of right".
[15] In our opinion
the submission of counsel for the defender on this branch of the case is to be
preferred. The final two sentences of
the passage within paragraph [24] of the Lord Ordinary's Opinion which we have
quoted may have been infelicitously phrased to the extent that those sentences
have evidently been capable of being construed, or read, in the terms put
forward by counsel for the pursuers and reclaimers, with encouragement from the
case commentary in Conveyancing
2006. There is within those two
sentences a possible conflation of the concepts of (a) whether the personal
bar stemming from the Council's having sat by allowing Duthies to expend money
on altering their buildings prevented them from relying on any informality in
the agreement in principle to allow access over the site; and (b) whether the agreement in principle
contemplated only precarious user, on tolerance. Subject to that possible infelicitous
expression we do not detect any substantial flaw in the approach adopted by the
Lord Ordinary.
[16] In our view,
the starting point is the agreement in principle which is the subject of the
Lord Ordinary's findings within paragraph [7] of his Opinion. Given the background that following the
creation of the dual carriageway the arrangements for operating Duthies'
business were unsatisfactory - and the permanence of the dual carriageway and
the narrowness of Shiprow - it is, in our view, difficult to see that the
agreement in principle, conditional on Duthies carrying out the necessary
alterations to their buildings, should be seen as one which contemplated only
precarious use of the site for access at the whim of the Council, granted as
some form of indulgence. In terms of
formal validity, the agreement in principle that Duthies should take access
over the site was defective. But, in a
question with the Council, that invalidity could plainly be countered by
Duthies by the invocation of personal bar, arguably once the Council had
approved the plans to alter the buildings, but at the very least once they had
stood by and allowed Duthies to carry out the significant and costly
alterations to their buildings which only had sense in terms of the agreement
in principle. Of course, in the event of
the Council selling the site prior to the expiry of the period for prescriptive
user Duthies would have been vulnerable since their right was personal and not
real. No doubt a purchaser from Duthies
would have been similarly vulnerable.
[17] But with the
passage of time and the expiry of the prescriptive period a personal right of
access may become a real right of servitude by user. That is the very nature of the creation of
servitude rights by operation of positive prescription. We reject the submission advanced by counsel
for the pursuers and reclaimers that the right of access upon which the
prescriptive claim is founded has to be a real right of servitude. If it were a real right of servitude there
would be no need to invoke the positive prescription. Cadit quaestio. In this case the Council and their local
government statutory successors knowingly allowed access to be taken over their
property for a period in excess of the prescriptive period and so, unless it
can properly be said that the access so taken could not be "of right" but could
only be by mere "toleration", the servitude right for which the defender
contends is establish or constituted.
[18] In addressing
the question of access "of right", we would observe at the outset the risk of a
semantic confusion which appeared on occasion to surface in the discussion
before us. In one sense, user which is
being taken "of right" is always "tolerated", in respect that the proprietor of
the servient tenement acknowledges the right and does not question it. So "toleration" in this context is, in our
view, directed not so much to the mind of the proprietor of the servient tenement
but to the nature, quality and frequency of the user. As was indicated in McInroy, the test is objective.
In the leading speech of Lord Watson in that case, his Lordship stated,
p. 48
"I do not doubt that, in order to
found a prescriptive right of servitude according to Scots law, acts of
possession must be overt, in the sense that they must in themselves be of such
a character or be done in such circumstances as to indicate unequivocally to
the proprietor of the servient tenement the fact that a right is asserted, and
the nature of the right".
Very occasional user in peculiar circumstances may readily be
ascribed to a sense of helpfulness or personal obligement on the part of the proprietor
of the servient tenement. But as is
stated in Gordon on Land Law
paragraph 24-49:
"If usage is only occasional, the
court is likely to infer that the usage was by tolerance rather than as of
right. As a matter of good neighbourhood
a proprietor is not likely to object to occasional use of his property by a
neighbour, and the law does not oblige him to object to such occasional use in
order to prevent his neighbour from acquiring a right. But if use is substantial and fairly
constant, challenge is necessary to preserve freedom from servitude rights, and
the challenge must be successful.
Persistence in use in face of an unsuccessful challenge is good evidence
of use as of right".
To similar effect are Cusine and Paisley at para. 10-19 in fine, where they say:
" ... what matters is the
volume of possession. Where the volume
is reasonably substantial, taking account of the nature of the right claimed,
this will be regarded as adverse and as the assertion of a right."
[19] On that
objective approach, (leaving aside any question respecting the car parking
lease) and having regard to the primary facts found by the Lord Ordinary we
consider that it can readily be deduced that the user exercised by Duthies and
the defender as successor in title, was "as of right". We have already alluded to the circumstances
leading to the agreement in principle.
Those circumstances were not transitory, since the problem presented by
the conversion of Trinity Quay into a dual carriageway was effectively
permanent. The width of Shiprow was also
a matter of permanency. And thus the
agreement in principle addressed a long term problem requiring solution in both
parties' interests. The Council approved
Duthies' plans to carry out the alterations;
and they knowingly allowed Duthies to carry out those works. These were costly works of a permanent nature
which, as the Lord Ordinary points out, only made sense were Duthies to have a
right of access. Having thus created the
new entrance to their premises, Duthies then took vehicular access to, and
egress from, those premises on a regular, open, daily, basis involving a
significant number of such vehicle movements on every business day. Setting aside any question arising from the
lease, in our view these circumstances demonstrate user as of right during the
prescriptive period.
The second issue
[20] The second
issue debated in the hearing of the reclaiming motion concerned the lease. The discussions and negotiations concerning
the lease between the parties are set out in some detail by the Lord Ordinary
in his Opinion. As he records, in 1976 when
the formation of a new vehicular access was initially under discussion, it
appears that consideration was given to leases being granted to Duthies and the
Moorings of the site for car parking and for access. In due course the Moorings dropped out and negotiations
continued with Duthies alone. In 1978
the Council offered Duthies a five year lease of the site on condition that it
be used "for the parking of vehicles and for no other purpose whatsoever". Duthies' response was that in view of the
expense required to make the site appropriate for commercial exploitation as a
car park, including the erection of a boundary wall and an entrance barrier,
the term of five years was too short.
Duthies proposed 25 years (with rent reviews) which was eventually agreed. The lease was executed in December 1980 with
the date of entry given as 15 November 1979.
Clause THIRD provided:
"The subjects shall be used, during
the currency of the Lease, solely for the parking of vehicles by the Tenants,
their employees and customers and other parties authorised by the Tenants; and it is hereby declared that the subjects
shall be used for no other purpose unless with the prior approval in writing of
the Council".
None of the other provisions of the lease touched in any way
upon the question of vehicular access to the warehouse premises. At this point in time Duthies had not carried
out any of the alterations necessary for, and thus conditional upon, effect
being given to the agreement in principle respecting access.
[21] Before the
Lord Ordinary it was submitted on behalf of the pursuers and reclaimers that
the incidental rights conferred by the lease included that of vehicular access
to the warehouse through the site and that accordingly the vehicular access
enjoyed by Duthies, and subsequently by the defender, until the ish was
referable to the lease. The Lord
Ordinary rejected this contention and counsel for the reclaimers made plain
that the contention was not renewed. It
was accepted by counsel for the reclaimers that the permitted use under the
lease was for car parking only and that the use of the site for vehicular
access to the warehouse was contrary to the terms of the lease.
[22] Instead, the
argument was firstly that the question of access and the question of car parking
having been to an extent interlinked in the discussions preceding the execution
of the lease, the execution of the lease superseded all previous
negotiations. And, since the lease made
no provision for access, any assurance or agreement in principle that access
would be given if the alterations to the warehouse premises were to be made
should similarly be treated as superseded.
[23] Counsel for
the reclaimers made no reference to authority in connection with this aspect of
his argument. The principle or doctrine
of supersession is in many respects a principle of construction of the formal
document. One has to construe the formal
document in accordance with its terms and without reference to prior
communings. But in our view it only
applies as respects the subject-matter of the formal document. An agreement which was not intended to be
incorporated in the formal agreement may survive (cf. Winston v Patrick 1980 SC 246). The lease is now accepted not to
encompass any rights of access and so, a
fortiori of the Lord Ordinary's rejection of the supersession contention
which was also advanced to him, we agree with that rejection. It may be noted that the lease was concluded
prior to Duthies carrying out any of the alterations, upon which their taking access
across the site was dependent. For
various reasons, Duthies might have been unable, or reluctant, to carry out
those costly alterations. So a
separation of the car parking user (being the sole user under the lease), from
the issue of access, dependent upon the carrying out of those alterations is understandably
evident.
[24] The second
submission advanced on behalf of the reclaimers by counsel in this chapter of
the argument was that the taking of regular vehicular access over the site was
to be attributed, in some way, to some form of derogation from or waiver
granted under the lease, and was therefore a matter of benign toleration by the
landlord.
[25] We are also
unable to accept this submission. The
lease did not envisage any exception to the user restriction in clause THIRD
other than such an exception approved in writing. It is not suggested that any such approval in
writing to the use of the subjects for access was ever given by the landlord. On the contrary, in the rent review
discussion set out in the Lord Ordinary's Opinion the Council firmly took the
view that the lease did not provide Duthies with any right of access; use of the site for the purposes of access
was contrary to the terms of the lease.
[26] In these
circumstances we have come to the view that the second issue must also be
determined favourably to the defender and respondent.
Decision
[27] For these
reasons we consider that the reclaiming motion must be refused. We shall therefore adhere to the interlocutor
of the Lord Ordinary.
