Scottish Court of Session Decisions

[1] In 1998 the pursuers entered into a Private Finance Initiative (PFI) agreement with the second defenders, Falkirk Council, for the refurbishment and extension of Larbert High School. Part of the PFI scheme involved the provision of a new permanent access road to the school from Main Street, Larbert. In connection with the PFI scheme the second defenders let the subjects which comprise the site of the school (including both the site of the school buildings, and further land to the west used inter alia as playing fields) to the pursuers on a 99 year lease.

[2] To the south of the school site lie subjects which belong to the first defenders and which are in course of development by them for residential purposes. The first defenders acquired those subjects from Central Regional Council, who then owned the school site as well, in 1994. The subjects acquired by the first defenders include a strip of ground which runs from north to south between the school site and the playing fields site, and through which runs a part of Carrongrange Avenue. To the north of that part, Carrongrange Avenue leads to Main Street, Larbert. To the south, it leads to the remainder of the first defenders' development site, and also affords access to two janitor's cottages within the school site.

[3] The Disposition by Central Regional Council in favour of the first defenders contains a reservation in favour of the Regional Council and their successors in title of a servitude right of access. The servient tenement in respect of the servitude is the strip of ground mentioned above, lying between the school site on the east and the playing fields site on the west, and containing part of the length of Carrongrange Avenue. It is described in the Disposition as "that part of the subjects hereby disponed shown delineated in red and hatched black on the ... plan annexed and executed as relative hereto". The dominant tenement is referred to as "our remaining lands", and I do not understand it to be disputed that those were or included the school site and the playing fields site. The right reserved was "a heritable irredeemable servitude right of access for pedestrian and vehicular traffic to our remaining lands over and across [the servient tenement]".

[4] Planning permission and roads consent has been granted for the creation of a new road to provide access to the school. The new road begins at Main Street, Larbert, at a point west of the junction of Main Street with Carrongrange Avenue. It follows a curving course southwards and then eastwards until it meets Carrongrange Avenue within the servient tenement. At its south east end it divides in two, the northern branch being intended to carry eastbound traffic and the southern branch to carry westbound traffic. The plans relative to the planning permission and the roads consent differ from each other in the detail of the junctions at the south east end of the new road, but in my view nothing turns on that for present purposes.

[5] In brief, the dispute between the parties relates to whether the reserved servitude entitles the pursuers to make up that part of the new road that lies within the servient tenement, which involves the making of three junctions, namely the mouths of the north and south branches of the new road on the west side of Carrongrange Avenue, and a junction giving entrance to the school site on the east side of Carrongrange Avenue. The pursuers maintain that it does. The defenders maintain that it does not.

[6] The PFI scheme involved a refurbishment project to be carried out over a period of two years. It began in 1998 and was due for completion in August 2000. Apart from the new road, it was completed timeously. The school re-opened in August 2000. The new road has not, however, been completed. Planning permission for it was granted, in face of opposition by the first defenders, in 1998. Discussions then took place between the parties' solicitors, the details of which were not put before me, but the matter was not resolved. Because the matter was not resolved, the pursuers in the spring of 2000 entered into a Supplementary Agreement with the second defenders, in terms of which (a) the time for completion of the new road was extended to 31 December 2000, and (b) temporary arrangements for vehicular access to the school via Carrongrange Avenue were made. In September 2000 the pursuers gave notice to the first defenders that they intended to proceed with the construction of the new road. The first defenders raised proceedings for interdict in Falkirk Sheriff Court, and on 27 September 2000 the Sheriff refused their motion for interim interdict. No timeous appeal was taken against that decision. After the time for appeal had expired, the first defenders sought to appeal out of time. Their application to do so was heard by the Sheriff Principal on 27 November 2000, and was refused. I was informed that the Sheriff Principal held that there was reasonable excuse for the lateness of the appeal, but nevertheless as a matter of his discretion refused to allow the appeal to proceed. I understand that in taking that view the Sheriff Principal was influenced by the considerations (i) that in the event that the pursuers fail to establish that the servitude entitles them to build the new road within the servient tenement, the first defenders will have alternative remedies in the form of an order for restoration and a claim for damages, and (ii) that the pursuers undertook that in the execution of the works they would not damage any trees which are the subject of a Tree Preservation Order.

[7] In the period since the refusal of interim interdict by the sheriff, the pursuers have proceeded with the construction of the new road. All that remains to be done is the construction of the parts that lie within the servient tenement, and a few finishing details. The pursuers aver that, notwithstanding the decisions made in the Sheriff Court process, the first defenders in November 2000 placed building blocks, metal containers and other obstacles within the servient tenement which obstruct the works they require to carry out to complete the new road. The first defenders do not dispute that averment. In those circumstances the pursuers have brought the present proceedings.

[8] In this action the pursuers conclude (1) for declarator that the servitude entitles them to take pedestrian and vehicular access over and across the servient tenement so as to gain access to the new road and the proposed junctions to be created on each side of Carrongrange Avenue, (2) for declarator that in exercise of the servitude they are entitled to build the proposed new junctions, (3) for interdict against the first defenders from obstructing them or their contractors in the exercise of the right of access or the construction of the new junctions, and for interdict ad interim, and (4) for an order under section 47(2) of the Court of Session Act 1988 upon the defenders to remove the obstructions lately placed on the servient tenement, and for an interim order to that effect.

[9] The case called before me on the pursuers' motion for interim interdict in terms of the third conclusion and an interim order in terms of the fourth conclusion. The pursuers and the first defenders were each represented by counsel. There was no appearance for the second defenders, who were called for their interest. It was common ground between counsel that the issues which required to be addressed were (1) whether the pursuers have made out a prima facie case for the interim orders sought, and (2) of so, whether the balance of convenience favours the making of such interim orders.

[10] Mr Clancy for the pursuers submitted that on a sound construction of the servitude they were entitled to form the proposed new junctions on Carrongrange Avenue and take access to the school from the new road, across the servient tenement, and into the school site. In making that submission he relied on four considerations.

1. The reservation was of a right of access "over and across" the servient tenement. The language was not the language in which a mere right of access along the route of the existing road would be conferred. The words "over and across" supported the view that a right of access from side to side of Carrongrange Avenue crossing the roadway and the verges was what was conferred.
2. It was significant that the servient tenement was not merely the solum of the existing road, but the whole of the area delineated in red and hatched black on the plan.
3. As at 1994, when the servitude was reserved, there was no existing route across the servient tenement. There was no vehicular route from the servient tenement to that part of the dominant tenement lying to the west. There was only one route from the servient tenement to the part of the dominant tenement lying to the east, namely the track leading to the janitor's cottages. A reserved servitude could competently reserve access by routes not physically available at the time of creation (Axis West Developments Ltd v Chartwell Land Investments Ltd 1999 SLT 1416, per Lord Clyde at 1421F-H, quoting from Nach Investments (Pty) Ltd v Yaldai Investments (Pty) Ltd [1987] 2 SA 820, per Hefer JA at 831)
4. If a reserved servitude was clear, a right to carry out works to facilitate enjoyment of it would be inferred (Alvis v Harrison 1991 SLT 64, per Lord Jauncey of Tullichettle at 67G-H and L). That would extend in the present case to the making of the junctions, and also to the removal of a length of boundary wall (some 7 metres) on the east side of Carrongrange Avenue and two lengths of hedge (30 and 15-20 metres) on the west.

[11] Mr Brailsford for the first defenders submitted that the reserved servitude was not clear and unambiguous in its terms. It was therefore, he submitted, legitimate to look at the terms of correspondence passing between Central Regional Council and the first defenders' solicitors at the time of the Disposition. He referred in particular to a letter of 11 January 1994 from which it appeared that the concern of the Regional Council was to preserve access to the janitor's cottages, and to two letters dated 17 February and 10 March 1994, which referred to "very limited" or "minimal" use of the access road by the Council. That all pointed to the intention being that the reservation was merely to secure access to the cottages. Moreover, Mr Brailsford submitted that while a servitude could be exercised to the full extent of the grant (or reservation), it had to be exercised in the least burdensome manner. There was no obstacle to the exercise of pedestrian or vehicular access across the servient tenement without the construction of the junctions or the destruction of lengths of wall or hedge. Such construction or destruction therefore could not be justified. The right conferred by a servitude did not extend to doing anything that involved damage to the servient tenement (Alvis v Harrison at 67L to 68A; Stevenson v Biggart (1867 SLR 184 at 187; Erskine, Institute, II, ix 34). Axis West Developments Ltd was clearly distinguishable - see the terms of the grant there (at 1417A-B). In any event, any right to select a route required to be exercised civiliter modo. That could not justify the creation of a double junction. The question whether works improved the road had to be judged objectively, and that test was not satisfied here. In the whole circumstances the pursuers had not made out a prima facie case of entitlement to construct the junctions and in doing so remove lengths of wall and hedge.

[12] In my view the pursuers have made out a prima facie case for interdict, although there are difficult questions as to the extent of the rights conferred on the pursuers that will require to be resolved at a later stage. In my view there is a clearly arguable case that the right reserved was not a right merely to travel along the existing road, but a right to gain access to all parts of the retained land, including the area to the west of Carrongrange Avenue as well as the school site to the east, by crossing the servient tenement. It is, in my view significant that the language of the reservation is "over and across", and that the servient tenement includes more than just the carriageway of the road. It is not in my view legitimate to seek to restrict the meaning of the reservation by reference to the pre-contractual correspondence relied upon by Mr Brailsford, but even if it were, it would in my view be necessary to pay regard not only to the passages which he highlighted, but also to the letter of 14 January 1994 in which the first defenders' solicitors acknowledged that the reservation should be of "the most general servitude right of access". It is, in my view, arguable on the pursuers' behalf that the reservation entitled them to determine the route of the access, since, at least on the west side of the servient tenement, there was no existing route. How far their ability to select the route is limited by the need to do so civiliter modo does not seem to me to be a matter that I should attempt to resolve in hearing a motion for interim interdict. How far the pursuers may go in constructing new junctions, and altering existing walls and hedges, is likewise, in my view, a matter of some difficulty that cannot properly be resolved at this stage. I do not consider that the rule against damaging the servient tenement necessarily precludes opening gaps in hedges and walls, where that is necessary if the right of access is to be effectively enjoyed.

[13] In these circumstances I am not prepared to hold that the pursuers do not have an arguable case for the rights which they claim. I therefore do not consider that the motion for interim orders should be refused on the ground that no prima facie case has been made out.

[14] In submitting that the balance of convenience favoured granting the interim orders which he sought, Mr Clancy made reference to a number of considerations. First, he said, the pursuers would suffer prejudice if the orders were not made. The new road would not be completed by the end of December, and they would therefore be placed in breach of their contract with the second defenders, as varied by the Supplementary Agreement. They would also be likely to face monetary claims from the contractors who were carrying out the construction of the new road, if completion of the works were further delayed. There would in any event be extra cost of some £20,000 involved in re-mobilisation of the site after the New Year break. The pursuers had incurred substantial costs in proceeding with the construction of the new road in the belief that, after refusal of the first defenders' motion for interim interdict in the Sheriff Court and after refusal of the late appeal, no further challenge was to be mounted to the work going ahead. It would be unfair if the first defenders were able to use this process to revive the issue on which they had lost in the Sheriff Court. Secondly, Mr Clancy reiterated the point that had been made before the Sheriff Principal, namely that if the work proceeded and it turned out eventually that the pursuers had no right to construct the junctions, the first defenders had adequate alternative remedies in the form of orders for removal of the works and restoration of the ground to its original state, and/or a claim for damages. Thirdly, Mr Clancy submitted, the first defenders would not suffer prejudice. There was no question of the new road being foisted on them as a substitute means of access to their development. Carrongrange Avenue would remain as an access for them (see No. 6/12 of process). Their sales literature contained an indication that they expected the status of Carrongrange Avenue to be upgraded by adoption by the local authority. There was no reason to suppose that that would be less likely to happen if the new road were completed. Fourthly, Mr Clancy submitted that the temporary arrangement for access to the school by way of Carrongrange Avenue was less satisfactory in the long term than access by way of the new road. He referred to a report by Goodson Cole Transportation (No. 6/8 of process).

[15] Mr Brailsford submitted first that, if the pursuers did have a prima facie case, it was a weak one, and that was a factor to be taken into account in weighing the balance of convenience. Secondly, he submitted that any damage to the trees protected by the Tree Preservation Order was a consideration militating against allowing the works to continue. Thirdly, he submitted that all the considerations founded on by Mr Clancy as involving prejudice to the pursuers were of their own making. If they had recognised timeously the need to obtain a resolution of the dispute about the extent of the rights reserved in the servitude, a judicial solution could have been obtained before any prejudice was suffered. If by leaving the matter unresolved until too late they suffered prejudice, that was not a consideration that weighed in their favour in the balance of convenience. There was nothing wrong with the temporary access arrangements, which subsisted with the approval of the local authority. It was no doubt right that if the pursuers ultimately failed to justify their position, remedies by way of restoration and/or damages would be available to the first defenders. But it was not known whether the pursuers would be able to meet monetary claims. Moreover, the completion of the new road would have an adverse impact on the value of the houses in the first defenders' development. The new road constituted an unattractive approach to the development, passing an area of low quality local authority housing. The first defenders' development was about half built (50 built, 43 sold, out of a total proposed development of 100 houses). The houses were at the top end of the market, selling at between £90,000 and £250,000. If the site were made less attractive, the houses would be harder to sell, and prices would have to lowered. That sort of loss was, however, notoriously difficult to quantify. The losses which the pursuers foresaw if interim orders were not pronounced were, in contrast, readily quantifiable.

[16] In my view the balance of convenience favours granting the interim orders sought. While I accept Mr Brailsford's submission that the weakness of a prima facie case may be taken into account in weighing the balance of convenience, having held that the pursuers in this case have made out a prima facie case, I am not of opinion that it is of such weakness as to constitute a factor of material weight against granting interim orders. There is, in my view, some force in Mr Brailsford's submission that the prejudice that the pursuers claim to have suffered is in some measure self-inflicted. Plainly, they could have put the matter beyond doubt by instituting proceedings long ago. On the other hand, I hesitate to say that they were wrong to proceed by negotiation. They did put the first defenders on notice in September of their intention to start work, and the first defenders chose to seek only interdict, rather than a declaratory remedy that would have settled the parties' substantive rights. The pursuers were entitled, in my view, to draw some comfort from the refusal of interim interdict by the Sheriff, the first defenders' failure to mark an appeal timeously, and the Sheriff Principal's refusal of leave for the appeal to proceed late. I am therefore not persuaded that I should wholly disregard, as self-inflicted, the prejudice which will be suffered by the pursuers if interim orders are refused. The weight of that prejudice is, however, in my view reduced by the fact that the pursuers had means at their disposal by which the issue might have been brought to a head earlier. The availability of alternative remedies for the first defenders, if interim orders are granted but the pursuers then fail to establish their entitlement to construct the junctions, is in my view a consideration of considerable weight. It was not suggested that reinstatement would be impracticable, and Mr Clancy suggested that it would cost only £15,000 to £20,000. There is, in my view, no material before me to cast doubt on the pursuers' ability to carry out such reinstatement, or bear the cost of it. A claim for damages may not, of course, be an adequate remedy if loss is suffered which is difficult or impossible to quantify. I accept in principle that loss in the form of damage to the marketability of new houses in a housing development may indeed be difficult to quantify. I did not, however, find the first defenders' contention that such loss was likely to be incurred very persuasive. The context in which such a claim would arise is that of the pursuers ultimately failing to establish their right to construct the disputed junctions. Reinstatement would therefore be available, and any impact on the value of the development therefore ought to be short term. In any event, the only basis for apprehension of harm to the value of the houses seemed to be that potential purchasers, approaching by the new road, would pass an unattractive local authority housing estate, and would be put off by that. No expert opinion, however, was produced attempting to quantify the impact of that factor. It is not a factor that I consider it appropriate to ignore, but it is one to which it is difficult to attach any identifiable value. I accept that the temporary access arrangements are less satisfactory, as access to the school, than the new road will be, but I do not regard that as a factor of very great weight. Doing my best to balance those disparate considerations, I am of opinion that the balance favours granting the interim orders sought.

[17] I shall accordingly grant interim interdict in terms of the third conclusion of the summons, and an interim order under section 47(2) of the Court of Session Act 1988 in terms of the fourth conclusion. Mr Brailsford asked for a longer period than the 24 hours mentioned in the fourth conclusion within which to remove the obstructions. That was, in my view, reasonable, and I shall therefore allow until noon on Monday 18 December 2000. It is, I think, appropriate that the pursuers should renew the undertaking offered in the Sheriff Court not to damage any of the trees affected by the Tree Preservation Order, and that they have now done.