Scottish Sheriff Court Decisions

(A4658/06)

JUDGMENT OF

SHERIFF PRINCIPAL EDWARD F BOWEN QC

in the appeal

in the cause

SP DISTRIBUTION LIMITED

Pursuers and Respondents

against

MR MOHAMMED SHABBAZ RAFIQUE

Act: Drummond, Solicitor, Biggart Baillie, LLP

Alt: Neilson, Solicitor, Harper MacLeod, LLP

EDINBURGH, 27 August 2009

The Sheriff Principal having resumed consideration of the cause varies the findings in fact and law contained in the Note to the Sheriff's interlocutor of 16 February 2009 as follows: (1) by deleting findings 6, 12 and 13; (2) in finding 10 by inserting the word "necessarily" after the word "not" and by deleting the words "realistic or measurable"; (3) in finding 11 by deleting the words "defenders have" in the first sentence and by substituting the words "defender has"; by deleting the word "unreasonably" in the first sentence and by deleting the final sentence; (4) in finding 15 by deleting all the words after "pre 1992 condition" and by substituting "the pursuers would be unable to exercise the right of access in a manner considered by them to be safe"; (5) by deleting finding 18 and by substituting: "Any ancillary rights accompanying the right of access granted to the pursuers' predecessors in 1966 did not extend to the creation of a flight of steps on the defender's property as set out in finding 7"; thereafter sustains the appeal; sustains the second and third pleas in law for the defender; recalls the Sheriff's interlocutor complained of dated 16 February 2009 except in so far as relating to crave 1 of the initial writ; quoad ultra grants decree of absolvitor; finds the pursuers and respondents liable to the defender and appellant in the expenses of the action including the expenses of the appeal and remits the account thereof, when lodged, to the Auditor of Court to tax and to report thereon.

(signed) E Bowen

NOTE:

1. The defender is the heritable proprietor of a dwelling house at 2A Clarence Street, Edinburgh. This is a typical Edinburgh basement flat. Access to it is gained by a flight of steps to the basement area which is slabbed. A slightly unusual feature is that, at the foot of the flight of steps there is a raised platform, approximately the width of one paving slab, which extends for several feet alongside the wall of the flat. On the opposite side of the basement area to the flat there are cellars under the street.

2. In 1966 the defender's predecessor sold three cellars to the South of Scotland Electricity Board. In terms of the Disposition to the Board the defender's predecessor granted "a heritable and irredeemable servitude right of access to and egress from the said cellars through and over the stairs leading from the corner of Clarence Street,...and across the area in front of the said subjects known as 2A Clarence Street, aforesaid".

3. Although it is not clear on the evidence whether it was known to both parties at the time, the cellars were purchased by the SSEB for the purposes of installing an electricity sub-station. The Board proceeded with that installation and such a sub-station has existed in the cellars ever since. The pursuers now own and operate that sub-station by virtue of a distribution license granted in terms of the Electricity Act 1989.

4. It appears that the electrical equipment forming the sub-station is, and has all along been, situated inside the cellars at a level lower than the basement itself. There was originally no access to the cellar area other than through a door which afforded entry at a point approximately 3 or 4 feet higher than the level at which the equipment is situated.

5. In circumstances which for the purposes of this action are to a degree contentious, the pursuers determined in about 1992 that this means of access to the sub-station was no longer safe. They sought, and obtained, planning permission to excavate part of the basement owned by the defender or his predecessor and for the construction of a flight of four steps thereby creating direct access to the level of the power station equipment. This flight of steps was fenced by railings on two sides. This construction effectively filled the width of the basement area other than the raised part immediately adjacent to the wall of the flat.

6. Planning permission was obtained without the consent of the defender's predecessor, although he was aware of it and lodged no formal objection. He did not consent to the work which the pursuers carried out at the time and neither he, nor the present defender, has ever consented to it since.

7. Disagreement between the present defender and the pursuers about the existence of the stairwell appears to have reached a stage where the defender removed the railings and threatened to infill the stairwell. Although the railings have been replaced, the situation has given rise to the present action in which the pursuers seek declarator of the existence of the right of access (which is not in dispute) and a further declarator, in somewhat complex terms, that the right of access included an implied right to dig out and construct steps to their subjects together with a handrail, "all as being necessary and reasonable for the exercise...of the servitude right of access". They further seek a series of interdicts against the defender from interfering with the stairwell created by them.

8. Following proof the Sheriff founded in favour of the pursuers. He made 18 findings "in fact and law". He held, in finding 18 that "the servitude right of access granted to the pursuers' predecessors in 1966 contained and included an implied right to take reasonable steps where a particular situation made that necessary, to ensure the continued use of the right of access". This finding provided the basis for success on the part of the pursuers. They argued that a "situation" had arisen making it necessary to take action to ensure that the right of access could continue to be used.

9. That "situation" as justified by the pursuers in their pleadings was that in 1992 the method of gaining access to the cellars was "classified as unsafe and prohibited for Health and Safety reasons" (Condescendence 4). They do not say who was responsible for this "classification". Notwithstanding this somewhat vague assertion, the Sheriff, in finding 6, held that: "Following an Act of Parliament of 1989 safeguarding employees from dangerous work practices various regulations were passed which classified this method of access into the electricity sub-station as unsafe and in the view of the pursuers prohibited on grounds of health and safety of employees". He went on to hold, on the basis of the evidence heard by him, that whilst the defender's ability to use the open basement area had been affected and that access to parts of the basement area were restricted there would not be any "realistic or measurable" affect to the value of the defender's property. In the whole circumstances he considered that the works carried out by the pursuers in 1992 were "essential and justified and reasonable for the continued exercise of their access right and failure to have improved the means of access would have placed the defenders in breach of important national legislation specifically designed to safeguard employees". (Finding 12).

10. Although the appeal was advanced on a number of lines I take as the starting point the defender and appellant's fourth ground of appeal which was to the effect that there was no proper basis for finding 6. It is to be noted that this contains an indication that there were specific regulations which, at least in the view of the pursuers if not in terms, prohibited access to the sub-station in its pre-1992 form, and that in consequence the pursuers were "obliged to find" a different method of entry. The solicitor for the pursuers and respondents did not seek to defend a finding in these terms and in my view he was correct to adopt that position. As indicated the pursuers' pleadings contained no specific reference to a provision in primary or subordinate legislation. The only witness to give evidence for the pursuers on this matter simply said that the work was carried out "in order to comply with the electricity work regulations and what have you, health and safety". In cross examination, whilst the witness made reference to compliance with the Electricity Work Regulations, he was unable to point to any particular provision with which the pursuers were obliged to comply.

11. In my view finding 6 cannot stand for a number of reasons. There is no basis on record for it nor is there proper evidential support. Moreover, I consider it to be inappropriate for a court to make a finding which does no more than infer the existence of a regulation without identifying what the regulation is. In reality, although it is a matter of surmise, it must be doubtful whether any specific regulation came into effect in 1992 which had the effect of demanding a change in the means of access to the sub-station. Statutory provisions existed for many years prior to 1992 which imposed a duty on employers to provide a safe means of access to and egress from a place of work. What may well have come about was a change in attitudes or safety standards. It is entirely reasonable to accept that the pursuers took the view in about 1992 that the method of access to the sub-station at 2A Clarence Street could no longer be regarded as safe and felt compelled to take action, but no regulation has been identified in this case which prohibited access.

12. The removal of finding 6 goes some distance to requiring a consideration of the Sheriff's approach de novo. But it falls to be observed that even if a change in regulations had the effect of making the pursuers' existing right of access ineffective that would not in itself justify significant physical works on a property of the servient proprietor. The point is dealt with in paragraph 12.128 of Cusine and Paisley on Servitudes and Rights of Way under the heading "Improvements and Additional Statutory Requirements". The authors give the example of a servitude of drainage by means of a septic tank where regulatory requirements provide that the existing tank has to be removed and replaced with one of much larger size. They ask "Can the dominant proprietor require the servient proprietor to allow him to upgrade the existing equipment installed in the exercise of the servitude? In our view the dominant proprietor cannot justify the increase solely on the ground that the statutory regulation renders the servitude ineffectual unless the increase is permitted...The dominant proprietor will...be entitled only to improve the facilities available to him if the extent of the servitude is already sufficiently extensive". This issue does not appear to have been debated before the Sheriff nor was it dealt with in any detail before me, but the proposition advanced by the learned authors of Servitudes and Rights of Way appears to be vouched by authority and is readily understandable as a matter of principle. In short, if a change in statutory regulations meant that the right of access could not be used, the sub-station might simply have become unusable.

13. Before turning, accordingly, to the central question in this case which is whether the extent of the servitude right granted to the pursuers was sufficient to entitle them to carry out the works in 1992, it is appropriate to deal with two other subsidiary matters, namely the existence of planning permission for the work carried out by the pursuers, and the effect, if any, of the works on the value of the defender's property. In finding 3 the Sheriff held that the work of constructing the stairwell was "carried out in accordance with the approved plans and these plans were passed by the relevant planning authority in accordance with the proper exercise of their duties at that time". The Sheriff dealt with the evidence relating to the obtaining of planning permission in his Note, observing that although the planning authority would have been required to be satisfied that the application of permission had been served on the owner of the subjects, consent or agreement of the owner would not have been required. He then went on to consider the evidence of the defender's father, who was the proprietor of the subjects in 1992 and concluded that he had not offered any "formal opposition" to the application for planning permission. He observed: "I was satisfied on a balance of probabilities that matters had proceeded properly and lawfully in 1992 and that he (the defender's father) had raised no formal opposition to the planning documents which were, I believe, lawfully served in accordance with the existing requirements of the planning regulations. Accordingly, I was satisfied that the construction of the stairwell was lawful in that respect and that this was not a construction which had proceeded without full and proper planning authority".

14. It is not clear whether the Sheriff considered this a matter of weight in determining that the right to construct a stairwell fell within the ambit of the pursuers' servitude right of access. The defender's third ground of appeal suggests that the Sheriff failed to recognise that "the mere grant of planning permission does not in law allow works to be carried out without the permission and consent of the owner". The proposition quoted is beyond argument. What is also beyond argument, as the Sheriff appeared to recognise, is that an application for planning permission can be made, and indeed may be granted, without the consent of the owner of the subjects on which the development is proposed. That being so, it is my view that the existence of planning permission for creation of the stairwell in this case, in the absence of any evidence of the consent of the defender or his predecessor to that permission, was simply irrelevant to the question of whether changing the method of access in this way fell within the scope of the right of servitude.

15. To some extent the same can be said for the question of whether the existence of the stairwell has any detrimental effect on the value of the property at 2A Clarence Street. This issue seems to have occupied a not insignificant part of the proof and amounted to a dispute between the two chartered surveyors as to whether the removal of the stairwell and railings would have the effect of raising the value of the property by £5,000. This contention came from the defender's expert, whilst the pursuers' witness was of the view that the existence of the sub-station itself affected the value of the premises and that in any event £5,000 was within the margin of variation which different valuers might place on the property. Having considered the evidence, in my view, the Sheriff went slightly too far in holding that the value of the property "would not" be affected by the existence of the stairwell. It is difficult to avoid the conclusion that the very presence of an electricity sub-station would in itself affect the value of the subjects with or without a stairwell, but it is equally true that the stairwell clearly restricts space within the basement area itself and there is justification for the view that this might put off some purchasers. However, whilst I have made a minor variation to the terms of the Sheriff's finding again I do not consider that the question of affect on value is a relevant consideration in determining the existence of the right which the pursuers must necessarily argue for.

16. The principal submissions of parties on that matter may be summarised as follows. For the defender and appellant it was submitted that the question was whether the digging out of part of the basement area and creation of the stairwell and fence was a "necessary and reasonable" part of the exercise of the servitude which had been granted. The starting point was the terms of the servitude right itself: see Moncrieff v Jamieson 2008 SC (HL 1) at paragraph 7. The right of access which had been granted was "through and over the stairs leading from the corner of Clarence Street and across the area in front of the subjects". It could not be said that excavation of the area in front of the flat could be said to fall within the terms of the right thereby granted; nor could it be said that a grant in such terms brought any implied right to carry out such works.

17. In any event there were certain legally implied conditions on the use of a servitude. The first was that a servitude required to be exercised civiliter, that is to say reasonably and in a manner least burdensome to the servient tenement consistent with full enjoyment of the right created (Alvis v Harrison 1991 SLT 64 at page 67L). Secondly, the exercise of the servitude right must cause no increase in the acceptable burden on the servient tenement (Cusine and Paisley supra paragraph 12.186). If it was unclear from the terms of the grant what the acceptable burden was the Court might refer to the surrounding circumstances to determine what was "ordinary and reasonable". The authors of Cusine and Paisley state (in para 12.187) that "whilst the matter remains strangely unstated in the relevant authorities, we take the view that the courts determine the issue in this situation by establishing what a "reasonable" heritable proprietor would have anticipated at the time of, and in the circumstances surrounding the original grant or reservation". It was submitted that it could not have been within the anticipation of the defender's predecessor at the time of the original grant that the pursuers would subsequently take the view that it was necessary to excavate the basement area in order to gain access to the cellars.

18. Whilst it might be the case that for the better enjoyment of his right the dominant owner may improve the ground over which a servitude right of access extended it did not follow that he was entitled to substantially alter the nature of it or otherwise prejudice the servient tenement: Alvis v Harrison (supra). In all these circumstances the Sheriff had erred in law in concluding that the right of access granted to the pursuers in 1966 contained an implied right to reconstruct the access in the way they had done.

19. For the pursuers and respondents it was submitted that as granted the servitude right bore with it an ancillary right to carry out works necessary to achieve its purpose. The creation of a stairwell was an exercise of that ancillary right. What took place in 1966 was the purchase of three cellars for the purpose of creating an electricity sub-station. The purpose of the servitude was to provide access to the sub-station. It was a necessary implication of that that it would involve the pursuers' employees who would require to access the sub-station safely. That in turn meant that the pursuers were entitled to maintain the means of access so that it was safe in that sense. If this involved carrying out works by, in this instance creation of a stairwell, that fell within the rights which were necessarily implied as an accompaniment to the original grant.

20. Fundamental support for this argument was sought from a number of passages in Cusine and Paisley but more particularly from paragraph 26 of the speech of Lord Hope of Craighead in Moncrieff v Jamieson. His Lordship stated: "The essence of a servitude is that it exists for the reasonable and comfortable enjoyment of the dominant tenement. Whether it originates in writing by means of an express grant or is to be inferred from other provisions not expressly creating a servitude, practical considerations may indicate that it will carry with it other rights which, although they would not qualify on their own as servitudes, are necessary if the dominant proprietor is to make reasonable and comfortable use of the property in favour of which it was granted". All that the pursuers sought to do was make comfortable use of their property, that is to say the cellars, and reconstruction of the means of access was necessary for this purpose. It was accepted that creation of the stairwell amounted to an increase in the burden on the servient tenement but it was not an unacceptable burden. The Sheriff had taken the view that there was little prejudice to the defender's use of his property in that he was still able to access windows and a gas meter situated in the area of the basement beyond the stairwell. In determining whether the increase in burden was unacceptable the Sheriff was carrying out a balancing exercise and had reached a view which could not be challenged.

Decision

21. The Sheriff has identified as being critical, at least on the face of his decision, the question of whether the servitude right of access granted to the pursuers' predecessors in 1966 included an implied right to take steps to ensure the continued use of the right of access. As is clearly indicated on the highest authority (Alvis/Moncrieff) the starting point for any such question is the terms of the grant itself. In this case the right of access was granted "across the area in front of" the defenders' property. In my judgment a right of access granted across a basement simply does not bear the interpretation that it incorporates any right to excavate the basement area and create a stairwell. This case could have been decided on that simple basis, and on that view the question of whether the creation of a stairwell by the pursuers amounted to an exercise of the right of servitude civiliter would not arise. (See the remarks of Lord Rodger of Earlsferry in paragraph 95 of Moncrieff)

22. Although the Sheriff acknowledged the requirement that the right of servitude should be exercised civiliter he did not deal with that matter in any detail and I do not understand his judgment to directly address the proposition that the creation of a stairwell amounted to permissible use of the right within the bounds of that doctrine. What he did do, perhaps understandably in the light of the argument advanced for the pursuers, was to identify the implied right which they argued for. However, in reaching the view that the implied right existed the Sheriff does not appear to have approached the matter by examining what might have been in the minds of the parties and what might have been reasonable to infer as an implied right accompanying the express grant at the time it was made. What he appears to have done is to arrive at the view that by virtue of force of circumstances - perhaps including the impact of legislation - the pursuers had no alternative but to create a stairwell to enable them to continue to use the cellars for a sub-station and has balanced that against the level of inconvenience and disadvantage to the defender. Whatever conclusion one can reach on those considerations, it is not in my view an appropriate manner in which to identify a right which could be implied into the agreement between the parties when it was originally made. As to the nature of what that implied right might be, when one removes from consideration the notion that the need to create a stairwell was brought about by statutory requirement, for the pursuers to succeed one would have to come to the point of holding that they had a right to physically reconstruct the method of access to the cellars whenever they themselves considered it necessary. That, it appears to me, is the affect of the Sheriff's finding 18. I do not consider that position to be tenable as a matter of law.

23. In all these circumstances I am wholly satisfied that this appeal must succeed. The position, stated shortly, is that if the means of access provided for by the servitude right granted in 1966 ceased to become safe the alternatives facing the pursuers would be to cease using the cellars as a sub-station or negotiate a fresh right of access with the defender. Other than the decree sought in crave 1 which is not disputed, the defender, in my judgment was entitled to decree of absolvitor.