Scottish Court of Session Decisions

The pursuers acquired land at Rubislaw Quarry, Aberdeen in terms of a disposition in their favour dated 18 March, 1997 (the 1997 Disposition) granted by Rubislaw Quarry Company Limited. The pursuers aver that the granters were a wholly owned subsidiary of the first defenders, Aberdeen Construction Group Limited. The first defenders have withheld admission of that averment, and one must proceed on the basis that the pursuers are to be put to proof of it. One result of this unsatisfactory state of affairs is that it is impossible to form a confident view of the recent history of the land in question.

The 1997 Disposition described the subjects as: "described in, disponed by and shown delineated in red on the plan annexed and executed as relative to the Disposition by Aberdeen Construction Group Limited in favour of ourselves, Rubislaw Quarry Limited, dated Nineteenth June, Nineteen Hundred and Eighty Nine...", (the 1989 Disposition). The land was disponed by the 1997 Disposition: "Together with (One) a non-exclusive grant in favour of our disponees and their foresaids and other persons authorised by them of access to and egress from the said subjects hereby disponed for vehicles and pedestrians over the road shown delineated and hatched in blue on the plan annexed and executed as relative to the said Disposition in our favour..". The parties are in dispute about the extent of the rights thus conferred on the pursuers. The land conveyed to the pursuers was carved out of a larger area acquired by the first defenders in 1981 from Rubislaw Granite Company Limited. The consideration was £1, and it appears likely that the 1981 and 1989 dispositions were intra-group transfers carried out at the instance of the first defenders in the process of assembling a much larger area for development.

The pursuers' Rubislaw Quarry site lies to the North of Queen's Road, Aberdeen. The quarry is worked out, and the subjects comprise the site of the exhausted workings together with relatively flat areas along the North boundary of the site and extending down its East side. The road referred to in the 1997 Disposition is now known as Hill of Rubislaw Road. It lies on or close to the boundary of the site on its West and North sides, before turning in a North-easterly direction at the North East corner of the site. From there it extends to form a junction with Anderson Drive. The first defenders own a substantial area of ground, known as the Rubislaw Campus site, which lies generally to the North and North West of the Rubislaw Quarry site, with an arm extending down the East side of the pursuers' site. The Campus site has been extensively developed. Four major buildings were completed by 1988, and in November, 1988, the first defenders granted leases of these subjects in favour of the second third and fourth defenders for terms of 999 years.

The precise relationship of the site boundary to the line of Hill of Rubislaw Road is a matter of contention. It is clear that all relevant information is in the hands of the first defenders. However, they have failed to make the position clear. It appears from a contemporary plan that at the time of the 1981 disposition there was a road known as Angusfield Lane which ran from Queen's Road in a generally Northerly direction and bounded the area of land conveyed by that disposition. Hill of Rubislaw Road cuts across the line of Angusfield Lane. When Hill of Rubislaw Road was constructed has not been disclosed. In particular it has not been disclosed whether it was constructed as part of the development of the first defenders' assembled site. Nor has it been disclosed whether it existed as anything other than a line on a drawing at the time of the 1989 disposition. Having regard to the dispute which exists between the parties the failure of the first defenders to make explicit the history of the road and the preparation of the plans is regrettable.

In the plan annexed to the 1989 disposition the boundaries of the subjects and the line of the road are so drawn that it appears that there may be two sections where the site boundary and the adjacent road line coincide and that between and beyond these sections there is a narrow strip of land between the site boundary and the adjacent road line. Aerial photographs suggest that the difference may be more theoretical than real. But on the difference there now turns a major part of the issue between the parties.

The pursuers seek declarator that the servitude of access entitles them and their singular successors to take and to allow vehicular access over Hill of Rubislaw Road at any time for the purpose of obtaining lawful access to and egress from the subjects and in particular for the purposes of any lawful access to and egress from any buildings that may be built on the subjects. The pursuers have planning permission for office development of part of the subjects. A traffic impact assessment prepared for planning purposes indicates that the pursuers intend to erect a substantial office building with integral car parking. Access to the site of the development is proposed to be by a simple priority junction with Hill of Rubislaw Road.

The first defenders granted a Deed of Conditions dated 8 November, 1988, in anticipation of entering into the long leases. In that Deed, the Campus site is described as "the Development", and the Rubislaw Quarry site as "the Quarry". It appears that at the date of that Deed no one other than the first defenders had any interest in the subjects comprised in either site. The Deed narrated the first defenders' wish to regulate inter alia "access to and egress from the Quarry over the subjects comprised in the Development"; and "access to and egress from each of the four parts of the Development". The first defenders and their singular successor were described in the Deed, so far as material for present purposes, as the "Quarry Proprietors", and, quoad the four components of the Campus site, together with their singular successors in those subjects, as the "Site A Proprietors", with similar descriptions for the other three sites, "B" to "D".

Clause 3.1 of the Deed provided:

Provision was made for the apportionment of cost associated with the access road. Clause 3.5 of the Deed provided that:

Clause 3.7 purported to constitute the rights of the Quarry Proprietors real burdens affecting the proprietors of Site A and Site C, being themselves. Clause 4 went on to declare that the Access Route should be held for the common benefit of the proprietors of the sites.

In the 1990 Disposition, the first defenders disponed the Quarry site for £1 to Rubislaw Quarry Company Limited. The deed was adjudged not liable to stamp duty. The subjects disponed were described in the terms repeated in the 1997 Disposition. The rights and obligations of the Quarry Proprietors under the Deed of Conditions were imported "so far as still valid, subsisting and applicable". That language also is repeated in the 1997 Disposition.

For the defenders Mr Clancy submitted that the action should be dismissed. The pursuers' subjects were described exclusively by plan. The descriptions in the disposition and in the Deed of Conditions were identical. The primary position of the defenders was that the Deed of Conditions qualified the servitude rights of the pursuers. It was effectively incorporated into the disposition. That was consistent with the scheme of the deeds overall. Declarator such as the pursuers sought would contradict the defenders' rights under clause 3.5 of the Deed of Conditions. There was a fundamental lack of specification in the conclusion and averments. They did not specify the point or points at which the pursuers proposed to take access into the servient tenement. As framed, the declarator sought would entitle the pursuers to take access at any point along the line of Hill of Rubislaw Road. That would expose the defenders to the risk of access being taken over land which was in the exclusive ownership of the first defenders, and in the occupation of their tenants, and in particular over some part or parts of the narrow strip separating the pursuers' subjects from the line of the road. The defenders' apprehensions arose from the pursuers' development proposals. When the site was sub-divided it was never anticipated that the quarry site could be developed intensively, and in particular for major office purposes. The traffic likely to be generated by the development would prejudice the enjoyment of the Campus site. Before the defenders' apprehensions could properly be addressed the pursuers had to specify the point or points at which they sought access, and then to establish their entitlement to take access there. They could only succeed in their present conclusion if they had an unqualified right to take access at any point. The Deed of Conditions, and in particular clause 3.5 excluded such a view. If it were correct, the proprietors of sites A and C would be disabled from making alterations to the line of the road of the kind provided for. The conclusion failed to accommodate the first defenders' rights under clause 3.5. Properly construed, the provision of the Deed of Conditions limited the pursuers to access at the point where it was taken at the time of the Deed of Conditions. It contemplated one point of access only. Two further provisions of the Deed supported the defenders' position. Clause 2 dealt with gates and fences. It made provision for maintenance and repair. However it did not envisage relocation. If the pursuers were correct the opening of an access at other than the previous location would necessarily involve relocation of part of the existing fences and gates. That was not permitted. Secondly Clause 4 regulated the rights and obligations of the proprietors of the other sites and permitted alteration of the road line without reference to the interests of the owners of the quarry subjects. That was inconsistent with an unqualified right to take access at any point.

Mr Clancy submitted that the existence of the dividing strip raised issues of fact. It was likely that the factual dispute could not be resolved without proof, given that the principal deeds were not available and that the quality of the copies was inadequate. One explanation might be that the plans were badly drawn. But it was clear that there was an issue, and that was a further reason for attacking the width of the conclusion. Mr Clancy developed the arguments in the first two paragraphs of the defenders' first note of argument that the action was incompetent. Until the pursuers specified a particular access point there was no real and substantial issue between the parties. The matter was purely hypothetical.

For the defenders, Mr Campbell argued that the Deed of Conditions was a nullity: Kildrummy (Jersey) Ltd v I.R.C. 1991 S.C. 1. That case was not affected by the decision in Ingram v I.R.C. 10 December, 1998, House of Lords. The Deed was a unilateral document incapable of creating the contractual relationships which it narrated. As such, it was a nullity and could not be set up by being incorporated into the disposition. It proceeded on the basis that the component sites were contiguous. There was a reference in the schedule to the Deed of Conditions to parts being "adjacent", but in the circumstances that had to mean contiguous. No part of the assembled land was excluded. At the material time the whole land was in the ownership of the first defenders. The deed was an attempt by the first defenders to contract with themselves. It was an ineffective device. In any event, the servitude fell to be construed as one found it in the pursuers' title. The right for which the pursuers contended was non-specific as to location. The titles made no restrictions on location. The first defenders were concerned at the time of the grant with the allocation of land of which they had exclusive ownership. There was no basis for a construction which was restrictive of the rights they effectively reserved to themselves as continuing owners of the quarry subjects. Properly construed the servitude was completely general. Alvis v Harrison 1991 S.L.T. 64 was a close parallel. Lord Jauncey set out the relevant test at page 67. In the present case there was no basis in fact or averment for the view that there was a specific prior point of entry. Having regard to the terms of the Deed of Conditions, properly construed they did not affect the generality of the pursuers' servitude right. The rights of the proprietors of the solum of the road were qualified for the protection of the owners of the quarry subjects. The first defenders had taken on themselves the burden of accommodating the use of the quarry subjects. The Deed of Conditions made no provision regulating the working out of those uses. Clauses 2 and 4 did not affect the rights of the quarry proprietor to the benefit of the general servitude. The apprehended traffic impact was irrelevant. Differential traffic loadings were provided for. There was nothing theoretical or hypothetical about the dispute. The first defenders or those acting on their behalf had opposed the pursuers' planning application. Their objections to the pursuers' rights of access were part of a continuing dispute. If there were any substance in the arguments based on the separation of the line of the road and the quarry subjects, proof would be required.

Mr Clancy, in reply, argued that Kildrummy was irrelevant. The amendment of section 32 of the Conveyancing (Scotland) Act, 1874 by the Land Registration (Scotland) Act, 1979 had removed the doubt whether a deed of conditions was effective prior to a conveyance to a third party: c.f. Halliday 2nd edition vol. 2 para. 34.37. There was now no basis on which it could be contended that the Deed of Conditions was a nullity. The first defenders were not contending that there was no right of access. But it was for the pursuers to specify the right of access they sought before the defenders required to express their attitude to it. As a matter of analysis of heritable right, the first defenders were entitled to assert their interest. There was an issue of fact over the position on the ground quite apart from the plans. Alvis did not assist the pursuers. The servient tenement in that case was the access road. The servitude was expressly over the road and verges.

There will require to be proof in this case. Hill of Rubislaw Road is constructed on land owned by the first defenders and let on the long leases of Sites "A" and "C". It is plain that those sites and the pursuers' quarry site are contiguous. However over at least significant portions of the Northern side of the quarry subjects the road line may lie to the North of the boundary line so that there are or may be strips of land, currently of unknown extent, separating the pursuers' subjects from the line of the road. If that is the case, the creation of an access into the quarry site over any such strip of land would necessarily encroach on land in the ownership of the first defenders other than the solum of the road itself. If the proof were to establish that the strip ran the entire length of the boundary difficult questions of implication might arise on the basis that it was necessary to cross the first defenders' land to exercise the right they had conferred. If, as seems more likely, there are sections only of the boundary where there is separation, one would incline to the view, prima facie, that the exclusivity of the first defenders' proprietary rights should prevail at those sections. There would then remain a live issue whether there were restrictions on the pursuers' rights of access where the road line and the boundary were contiguous. In that context there may be an issue whether the pursuers would be restricted to some prior point of access. That also raises an issue of fact, whether there ever was an access to the quarry site as now defined. It is difficult to see how there could have been such an access. Along the Northern side of the quarry site the current boundary was defined for the first time in the 1989 disposition. Any road crossing the current boundary would necessarily have been an internal circulation road rather than an access. The plan attached to the 1982 disposition suggests that there may even have been buildings on part of the line of the access road as it now exists. However, since the point has been taken on behalf of the first defenders, who have all of the knowledge necessary for a proper understanding of the history of the site, one must assume that it could have some substance. There will require to be proof also in relation to the defenders' contention that the additional traffic generated by the proposed development will impose an unreasonable increase in the burden of the servient tenement. That issue was dealt with in the context of the planning process, but has been introduced in the present case, and must be resolved as a matter of fact.

In my view the present action provides a proper focus for the resolution of a real issue between the parties. Any declarator ultimately pronounced will take account of the facts emerging at proof. The pursuers contend for an unqualified right of access. If they are wrong, the necessary qualifications can be written into the interlocutor. I reject as without substance the defenders' arguments that the action is incompetent. Mr Clancy's acceptance that there would be at least a conditional right to take access where there is no separation provides one measure of qualification, if factually correct. There is no basis for apprehension that the court will find it difficult to reach a practical conclusion on the real issue in dispute.

It would be premature to express any view on the argument that the pursuers' right is limited to a single point of access. But there are some aspects of the argument which can properly be disposed of at this stage. In the first place, I consider that Mr Clancy was correct in arguing that the Deed of Conditions validly established conditions for incorporation into later dispositions. Section 32 of the 1874 Act as amended provides that a unilateral declaration of conditions, once recorded, may be effectually imported in whole or in part by reference in any deed or conveyance provided that it is expressly stated that the grant is under the reservations and others set forth in the reference deed. Notwithstanding Lord Hoffman's reservations in Ingram, there would be an interesting issue for a higher court whether Kildrummy (Jersey) Ltd was correctly decided, since the successful argument there proceeded largely on English authority. But the point does not arise since the question in this case is covered by statute.

Secondly, I think it appropriate to comment on the interpretation of the Deed. In my view, while there are problems with some of its language, the Deed has an intelligible structure which has a bearing on the approach to its interpretation. The Deed was expressly entered into in contemplation of the development of the Campus sites and the granting of leases of the developed parts of the subjects. The first defenders had to deal with the inter-relationships of the owners and occupiers of the four defined sites, not only among themselves, but as between those interests and the interests of the owners of the quarry site. Clause 4 appears to have been envisaged as a source from which to incorporate into the leases provisions regulating the interests of the tenants inter se and the interests of the tenants in a question with the heritable proprietor. Since the first defenders owned the whole land, and still do, there was no purpose to be served in providing for contributions as among the owners of the four component sites unless it was part of the mechanism for passing the apportioned costs on to the tenants. One may reasonably assume that there are provisions in the long leases conferring on the individual tenants the rights envisaged in the Deed, and binding them to observe the obligations expressed there. The language of clause 4 is unusual. The road is to be "held for the common benefit" of the heritable proprietors of the four sites, with each having a non-exclusive right of access to and egress from its site for vehicles and pedestrians over the road. The access right is thus expressed in the same terms as the pursuers' servitude, but the concept is different. It is expressed as a beneficiary right in property held for their common benefit, as if in trust. Clause 4.2 then envisages an obligation, presumably to be given practical effect in the leases of sites "A" and "C", to maintain the road, with, in sub-clauses 4.3 and 4.4 provision for contributions to related costs. Clause 4.5 provides a mechanism for allocating costs failing agreement. Clause 3 makes parallel provisions in the case of the quarry site, but as aspects of a servitude. In relation to costs, the two clauses interact in a rational way. The quarry's share is to be determined first, by reference to the volume of traffic generated by the quarry compared with the total traffic volumes of the four sites. That contribution is then to be taken into account in working out clause 4.5. The provisions of clause 3.5 and of 4.6 take account of the respective interests of the quarry owners and the owners (and presumably tenants) of the four parts of the Campus site. The argument focused on clause 3.5 (c). It is instructive to compare it with clause 4.6.3. In the latter provision it is provided that alteration of the line of the access road within sites "A" or "C" is conditional on the consent of the owners of the other three sites, which consent shall not be unreasonably withheld. That reflects the beneficiary rights conferred by the clause. Clause 3.5. (c) on the other hand makes no provision for consent, but qualifies the right to alter the line by a condition that there should be provided a means of access and egress which does not materially interfere with the use and enjoyment of the quarry subjects. In my opinion there is nothing in these provisions which bears upon the issues which arise in this action. It might be arguable that the reference in clause 3.5. (c) to "a" means of access qualifies the obligation to protect the quarry interest. But in my opinion the important part of the provision is that relating to maintaining the use and enjoyment of the quarry subjects. The leases envisaged in this deed were to be for 999 years. In that span of time the scope for alteration of the roads and buildings in the Campus and quarry subjects must have been understood to be great. F

In their supplementary note of argument, the defenders contend that the right to exercise access could only be to a particular location within the dominant tenement to which access was, as a matter of fact, exercised at the date of granting the deeds. For present purposes it is necessary to assume that there was in fact some such access in existence. If so, it is to be observed that it is not identified in the Deed of Conditions or in the disposition. The relevant plan in the Deed, annex Q, does not show it. That plan does show the intersection or planned intersection of Hill of Rubislaw Road and Angusfield Lane, a distributor road running North into the Campus development site, the tail of an access road to the Eastmost development site South of the access road, and an access into the East development area North of the access road. If, in these circumstances, there was nevertheless a pre-existing access, it would appear that the most natural explanation of an omission to identify it would be an intention that it should not be the measure of the quarry owners' right of access. That apart, there is nothing in clause 3.1 of the Deed, nor anything in the disposition, to support the notion that the quarry access should be limited to a single point, nor that it should be limited to a specific location.

In the circumstances, I shall repel the first plea in law for the defenders and otherwise allow proof before answer.