Scottish Sheriff Court Decisions

SHERIFFDOM OF GRAMPIAN HIGHLANDS AND ISLANDS AT KIRKWALL

Court Ref: A18/08

JUDGMENT

by

SHERIFF DANIEL KELLY QC

in the cause

DENNIS GARSON

residing at Newcastle, Quoyloo, Sandwick, Orkney

FIRST PURSUER

and

KATHLEEN ANN JOHNSTON

residing at Newcastle, Quoyloo, Sandwick, Orkney

SECOND PURSUER

against

JAMES ALEXANDER MCLEISH

residing at Rake Hill, Egginton Road, Etwall, Derby

and some time at Skerrivore, Sandwick, Orkney

FIRST DEFENDER

and

MRS BETTY MARION MCLEISH

residing at Rake Hill, Egginton Road, Etwall, Derby and

some time at Skerrivore, Sandwick, Orkney

SECOND DEFENDER

Act: Herd, The Herd Law Practice, Kirkwall; Alt: Kennedy, Advocate; Drever & Heddle, Thurso.

____________________

KIRKWALL 11 DECEMBER 2009

The Sheriff, having resumed consideration of the case:

FINDS IN FACT:

1.            The Pursuers are the heritable proprietors of Newcastle, Quoyloo, Sandwick, Orkney.

2.            By virtue of a Disposition in favour of Dennis Garson recorded in the General Register of Sasines for the Counties of Orkney and Zetland on 22 June 1961 Dennis Garson purchased from Annie Mary Brass:

(a)   the plot of ground described inter alia as follows: "ALL and WHOLE that plot of ground formerly part of the lands of Newark with the small dwellinghouse and yard known by the name of Newcastle situated thereon, extending in length from East to West one chain sixty-three feet or thereby, and in breadth from North to South one chain sixteen feet or thereby, and bounded on the North by another part of the lands of Newark, on the East by the ground (second) hereby disponed, on the South by the subjects now or formerly belonging to William Smith and on the West by the public road lying in the parish of Sandwick, Mainland, in the County of Orkney"; and

(b)  a second plot of ground immediately to the east thereof.

3.            The Disposition in favour of Dennis Garson further stated that the subjects were conveyed under "the burden of all rights of way over the continuation westwards of the said access road formed on the north boundary of the said subjects". This is a reference to the access road with which the present action is concerned.

4.            Kathleen Johnston has lived with Dennis Garson at Newcastle since about 1977. Dennis Garson transferred a one half pro indiviso share in Newcastle to Ms Johnston by Disposition recorded in the General Register of Sasines for the Counties of Orkney and Zetland on 8 December 2006.

5.            From about 1970 to 1976 the cottage now known as Skerrivore Cottage at Quoyloo, Sandwick, Orkney, was owned by Helen Gibson. In 1970 it was known as Newark Cottage and was a two room cottage. She renamed it Capilano. She lived in the house with her husband, Peter Davidson, from about 1970 to 1973. They extended the house by building three bedrooms, a bathroom and a hallway. A friend who was a joiner and Dennis Garson helped them.

6.            From 1987 to 1994 Capilano Cottage (as it was then known) was owned by Mrs. Katrina Mainland and John Louttit. After John Louttit's death in 1994 it was owned by Katrina Mainland until 1997.

7.            Capilano Cottage (as it was then known) was sold by Mrs. Katrina Mainland to Mr and Mrs. Charles Wrigley by way of a Disposition in their favour recorded GRS (Orkney & Zetland) 17 March 1997. This Disposition stated that the subjects were disponed "TOGETHER WITH .... (Five) so far as I may competently grant same an (sic) heritable and irredeemable servitude right of pedestrian and vehicular access and egress to and from the subjects hereby disponed to and from the public road leading from Quoyloo to Kierfiold by way of the access road lying generally to the East and North of the subjects hereby disponed". When Katrina Mainland sold Capilano Cottage to Charles Peter Wrigley and Mrs Rosemary Wrigley they renovated it internally during 1997.

8.            James and Betty McLeish purchased the property then known as Capilano Cottage from Charles Peter Wrigley and Mrs Rosemary Wrigley by way of a Disposition in their favour recorded GRS (Orkney & Zetland) 13 August 1997. This Disposition stated that the subjects were disponed "TOGETHER WITH .... (Three) the whole heritable and irredeemable servitude rights of pedestrian and vehicular access and egress effeiring thereto as specified in the said Disposition in our favour." The Defenders renamed the cottage Skerrivore.

9.            In 1961 when Dennis Garson acquired Newcastle the access track leading from the main road was a grass track. Since 1961 the access road has been used by anyone who wished to do so. A fence forms the boundary between the land owned by Dennis Garson at Newcastle and the neighbouring property at Newark Farm. The fence is the same fence as was there in 1961.

10.        From 1970 to 1976 the access way was used for pedestrian and vehicular access to and from Capilano by Helen Gibson and, until 1973, by Peter Davidson. In 1970 the access way was still a grass track. Mr Davidson and Ms Gibson cleared out the track with the assistance of an excavator and a driver. They scraped out the grass at the centre of the track. This was placed in holes in the field at Capilano. The surface of the track was thereafter hard, being largely down to rock. It was levelled off. Rubble from a wall which they had knocked down at Capilano was taken down by wheelbarrow and placed on the road. Ms Gibson assisted in taking the stone from the wall which they had taken down in a wheelbarrow and leaving it on the access track as far as the bend of the track at Newcastle. A tractor was driven over the track and then chipped stones were added on top. Dennis Garson, who was present at times but not actively involved, had no objections to this work being carried out. Stanley Garson, who owned the track from the section owned by Dennis Garson, had no objection either. The stretch of access way where the grass had been cleared was from the public road to their property at Capilano. At that time the access road ended at Helen Gibson's garden.

11.        In the period from 1970 to 1976 the main traffic on the access road consisted of cars coming to Capilano Cottage. Peter Davidson had a tractor and building materials were mainly brought to the house on a trailer behind that. Stanley Garson used to drive his tractor on the access road. An oil tanker delivered oil for the stove twice a year.

12.        In the period from 1976 to 1987 the access road continued to be used by the proprietors of Capilano Cottage for pedestrian and vehicular access to and from Capilano.

13.        Between 1984 and 1989 the tarmacadam at the bell-mouth of the access road was placed there by workers engaged by the Roads Department. The unofficial practice of those working for the Roads Department at that time was to take tar up a section of the drives and tracks when tarmacing the roadways.

14.        Mrs. Mainland lived at Capilano from 17 June 1987 until 7 March 1997. She owned it with John Louttit from 1987 until his death in 1994, at which point it was owned by herself alone until 1997. They purchased the property from the Bank of Scotland, who had repossessed it from the prior owners, Mr and Mrs Francis Merrick. From 1987 to 1997 the access road to Capilano Cottage was used for pedestrian and vehicular access openly, peaceably and without interruption. Mrs. Mainland carried out repairs to the access road when necessary, such as filling in pot-holes, from the entrance of the access road up to the house. John Louttit ran a car hire firm from Capilano which operated several cars, mainly driven by him but occasionally also by other drivers. He also carried out repair and maintenance work on about six cars each year. Mrs. Mainland had a car and a long wheel based Land Rover. She operated a croft and took the sheep and goats via the access road in a trailer towed behind the Land Rover. She initially had eight cattle which were delivered in a large cattle trailer behind a tractor. The bell-mouth of the road is narrower now than it was then since bushes have since been grown on the verge on the right hand side, looking from the main road. Before, this verge had been a narrow grass strip. Mrs. Mainland never had any question raised about the right of access to the property while she had lived there but there was a challenge to it after she had agreed a sale and had left the property.

15.        The access road is currently largely used by cars and vans. The post-van goes up the access road daily. George Spence takes his tractor up it. Oil tankers use it about twice a year.

16.        In April 2007 an application for Planning Permission was lodged by Peter Finnigan, an architect acting on behalf of the defenders, to erect a dwellinghouse on their property.

17.        The pursuers set out their current position as to the Planning Application in a letter dated 13 May 2007. They did not object to the erection of a new house and garage if it was not close to their boundary fence.

18.        Betweeen May and July 2007 the defenders went to see the pursuers who told them that they could use the access road but that it was not to be altered.

19.        On 4 July 2007 a Hearing was held in relation to the Planning Application.

20.        The pursuers set out their current position as to the Planning Application in a letter dated 7 July 2007.

21.        A Report by the Director of Development Services to the Environmental, Planning and Protective Services Committee dated 10 September 2007 noted the representations of the pursuers and Mrs. E Jones. These included the following representation and comment:

"3.7 The development will increase traffic using the access track which has limited vision, additional traffic using this access would increase the danger. In addition concern has been expressed regarding the suitability of the access road for emergency vehicles.

3.8 Comments: The access has been looked at by the Roads Services and they have requested that the junction is improved. If this is carried out to the Roads Services specification the access should be suitable for the increased traffic that would result from the development."

22.        The Recommendation the Director of Development Services was that planning permission be granted subject to conditions. These included the following:

"03. That access details are submitted for the further approval of the Roads Authority and constructed to the specification of the Roads Authority before any building work commences on site.

Reason: In the interests of road safety."

23.        Planning permission was granted on 13 September, 2007 by way of Decision Notice 07/280/PPF with plans attached. The terms and conditions included the following:

"03. That access details are submitted for the further approval of the Roads Authority and constructed to the specification of the Roads Authority before any building work commences on site.

Reason: In the interests of road safety.

04. That prior to development commencing on site, the access, referred to above, being constructed to the written satisfaction of the Director of Development Services, in consultation with the Director of Technical Services.

Reason: in the interest of road safety."

24.        About November 2007 Mr Finnigan arranged a meeting for the defenders to see Brock Brothers, who were builders. This was to introduce them to a builder, not to award a contract to them.

25.        In about April 2008 the defenders and Mr Finnigan attended a meeting with Alastair Banks, Planning Manager for Development Management with Orkney Islands Council, Margaret Gillan, the planning officer dealing with the application, and a roads engineer. Following on from the meeting Mr Finnigan drew up a plan showing how the bell-mouth of the access road could be altered to widen the roadway. Plan 389/SK/1 is a drawing designed to show the existing access track. Plan 389/SK/2 is a drawing designed to show proposed amendments to the junction to the access track. In a letter from Orkney Islands Council to Mr Finnigan dated 1 July 2008 Alastair Banks confirmed that the access improvements proposed were satisfactory. A letter of 5 June 2009 from Mr. Finnigan had a photograph attached showing hatched in red the area where it was proposed to extend the tarmaced roadway.

26.        The width of the access road including the verges is about 5,150 mm. There is a verge or border next to the house of Newcastle which is about 1,400 mm wide but which tapers and narrows at the bell-mouth. The grass verge on the other side of the roadway, at the field opposite the house of Newcastle, is about 1,250 mm wide. The tarmaced roadway is 2,500mm. Due to some tapering of the verges and some widening of the roadway, its width where it meets the public road including the verges is 5,900 mm. Drawing 389/SK/2 depicts the grass verge next to the field narrowed to 500 mm wide for a length of just over 5,000mm, with the tarmaced area being extended correspondingly. This would widen the tarmaced roadway from 2,500 mm to 3,250 mm. Due to the bell-mouth shape, at the part where the roadway meets the public road the tarmaced area would be greater. The difference thereby proposed is that a strip of grass verge, measuring 750 mm wide by five metres long, be converted to become part of the road surface.

27.        The access improvements proposed as shown in Plan 389/SK/2 have been approved by the Roads Authority as being satisfactory, as confirmed in the letter from the Planning Manager of Orkney Islands Council dated 1 July 2008. That plan was approved on 1 August 2008, as stamped on No 6/3/4 of Process. The Site Plan was approved and Planning Permission granted on 13 September 2007. It is a further condition that the development be started within five years of 13 September 2007.

28.        In July 2008 Dennis Garson placed metal posts about two feet in height along the edge of the access road at the bell-mouth at the section where damage had been caused by vehicle wheels. This was at the left of the access road viewed from the public road. George and Margaret Spence pulled them out about one week after they had been put in.

29.        Iain Sutherland has a construction, concrete and steel business which operates under the name of Sutherland of Summerbank Contractors Limited. He does not know the defenders nor has he ever been instructed to do work for them. In July 2008 he was carrying out work at Isbister Brothers and left his plant there. His company carried out sub-contract work to Graham Brock Builders and Mr Brock had told him that he would be doing work in the area and that he would come to him for a quote. Mr Sutherland told staff at Isbister Brothers that he had a road end to dig up and a foundation to dig in the area. Mr Sutherland did not know where the job was and in conversation with Isbister staff, including Ms Johnston, wondered where this would be. Nothing has been done by the defenders or on their behalf about instructing such work to the roadway. In particular, they did not instruct any work to be carried out on the access road by Mr Sutherland.

30.        In March 2009 a muddy track mark was left on the green verge of the access road on the further side of the roadway from Newcastle after a vehicle had driven over it. On 1 April 2009 the green verge beside Newcastle was damaged when a lorry was turning up the access road from the main road and had to move backwards and forwards while turning. A drain pipe was exposed as a result. Ms Johnston immediately complained to the defenders and contacted the driver's firm.

31.        On 14 August 2009 an oil tanker was delivering a supply to Skerrivore. The rear of the lorry was about one foot away from the strainer post at the corner of the field.

FINDS IN FACT AND LAW:

1.            A servitude right of pedestrian and vehicular access has been validly created by inter alia the owners of the property at Skerrivore, Quoyloo, Sandwick, Orkney, over the access road on the north boundary of the subjects at Newcastle, Quoyloo, Sandwick, Orkney.

2.            The right of servitude is one which was created by prescription.

3.            The servitude right of access has been exercised in excess of the prescriptive period over the tarmaced area at the bell-mouth of the access road and the track leading therefrom.

INTERLOCUTOR

The Sheriff, having heard the evidence and having heard parties' agents thereon and having resumed consideration of the case:

(1)  recalls the interim interdict granted on 1 August 2008;

(2)  sustains the fourth and fifth pleas-in-law for the pursuers;

(3)  quoad ultra repels the remaining pleas-in-law for both parties;

(4)  interdicts the defenders or anyone acting on their instructions or on their behalf from carrying out any construction works at the heritable subjects owned by the pursuers at Newcastle, Quoyloo, Sandwick, Orkney, being the subjects registered in the General Register of Sasines for the Counties of Orkney and Zetland on 8 December 2006, by widening or attempting to widen the surface area of the private road forming a part thereof; and

(5)  appoints 26 January 2010 at 11 am as a Hearing on expenses.

NOTE

General background

[1]              Several properties at Quoyloo, Sandwick, Orkney, border and make use of an access road leading from a single lane public road known variously as Breckside Road, Keirfiold Road and Bristol Road. With a border also onto the public road lies a house known as Newcastle. Next along the access road lies a house known as Skerrivore. Thirdly along the access road lies a house known as Glenavon. At the end of the access road is a field in which are the ruins of Quayloo Cottage and Quarrybanks.

[2]              The pursuers live at the house known as Newcastle, Quoyloo, Sandwick, Orkney, and are the heritable proprietors thereof. The defenders are heritable proprietors of the nearby house known as Skerrivore and its surrounding ground.

[3]              The defenders' property at Skerrivore has no direct access to the public road. A roadway from the public road running past their property provides access thereto. That access road is owned at the section nearest to the public road by the pursuers and thereafter by Stanley Garson, the brother of the first pursuer. There is no express right of access conferred by the pursuers to heritable proprietors of neighbouring properties. However, title to the pursuers' property is held subject to "the burden of all rights of way over the continuation westwards of the said access road formed on the north boundary of the said subjects." A right of pedestrian and vehicular access to the defenders' property along the roadway has been enjoyed and established by the defenders and their predecessors and that is readily accepted by the pursuers. Indeed, the roadway has been used by anyone who wished to use it. Adjacent to Skerrivore and next along the roadway is the house known as Glenavon. The roadway is also used as a means of access to and from Glenavon. At the end of the roadway is a field containing Quarrybanks and Quoyloo Cottages, both of which are now ruins. The last occupant of Quoyloo Cottage parked his car at Snea next to the public road and walked across the field to the cottage. He rarely required to use the roadway but did so when he wished.

[4]              The access road is used primarily by cars and vans. The post-van goes up the access road daily. A tractor is driven up it. Very occasionally a lorry requires to go up it. Oil tankers use it about twice a year. On 1 April 2009 an eight-wheeled lorry went up and down it to collect scrap metal from Skerrivore. In the process, when the lorry was turning up the roadway from the public road and had to move backwards and forwards, the green verge beside Newcastle was damaged.

[5]              In April 2007 an application for Planning Permission was lodged by Mr Finnigan on behalf of the Defenders to erect a dwellinghouse on their property. Planning permission was granted on 13 September 2007 subject to terms and conditions. These included conditions as to access. The access improvements proposed, which are shown in Drawing 389/SK/2, have been approved by the Roads Authority as being satisfactory, as confirmed in the letter from the Planning Manager of Orkney Islands Council dated 1 July 2008. The Drawing depicts the access way being widened. This would be achieved by a narrowing of the verge on the right hand side exiting the access road.

[6]              The width of the roadway including the verges is about 5,150 mm. There is a verge or border next to the house of Newcastle which is about 1,400 mm wide but which tapers and narrows at the bell-mouth. The grass verge on the other side of the roadway, at the field opposite the house of Newcastle, is about 1,250 mm wide. The tarmaced roadway is 2,500mm. Due to some tapering of the verges and some widening of the roadway, its width where it meets the public road including the verges is 5,900 mm. Drawing 389/SK/2 depicts the grass verge next to the field narrowed to 500 mm wide for a length of just over 5,000mm, with the tarmaced area being extended correspondingly. This would widen the tarmaced roadway from 2,500 mm to 3,250 mm. Due to the bell-mouth shape, at the part where the roadway met the public road the tarmaced area would be increased. The difference proposed is that this strip of grass verge, measuring 750 mm wide by five metres long, be converted to become part of the road surface. It is this strip which was at the centre of the proceedings. Were this strip of grass verge to be tarmaced to a suitable specification, the condition as to access attached to the grant of planning permission would be met.

The proceedings

[7]              On 1 August 2009 interim interdict was granted against the defenders from entering upon the property at Newcastle other than to exercise a right of access. On the same date the Initial Writ was served upon the defenders. The interim interdict has remained in place since then. A Proof before Answer took place over two diets in August and November 2009.

The issue

[8]              The pursuers seek interdict against the defenders from carrying out construction work on a roadway which is part of their property and which provides access to the defenders' property. The work proposed will have the effect of widening the road. In order to determine whether the defenders would be entitled to carry out such construction work it is necessary to resolve whether they, as joint dominant owners, are entitled to widen the roadway which is part of the servient land.

The pursuers' evidence

Dennis Garson

[9]              Dennis Garson stated that he was aged 71, a retired agricultural engineer. He acquired the house at Newcastle in 1961 and later disponed a one half share in it to Kathleen Ann Johnston. He said that in 1961 the track at the side of Newcastle was in existence and that at that time there was one other house along the track which was lived in, namely Newark Cottage (later known as Capilano and now known as Skerrivore). He said that in 1961 it was just a grass track. He said that the fence along it belonged to the farmer, was the same fence as was there in 1961 and was the boundary between Newcastle and Newark Farm. Dennis Garson explained that the public road at Newcastle which the track led onto was single track and was known as Breckside Road, Keirfiold Road and Bristol Road.

[10]          Dennis Garson thought that the damage to the green verge beside Newcastle in March 2009 might have been caused by George Spence's cattle float. He said that damage to the verge had occurred on 1 April 2009 when an eight-wheeled vehicle was turning up the access road from the road and had to move backwards and forwards. A drain pipe was exposed as a result.

[11]          Dennis Garson confirmed that the access road was used by anyone who wished to do so and that there had never been any trouble about this whatsoever. It was used by oil tankers twice a year. He said that George Spence came up it with his cattle trailer in the summer. He stated that he had not objected to the defenders building a new house on ground at Skerrivore but that he did object to the road being altered. He said that he had objected to the planning application on this basis. He said that at the hearing Mr Finnegan, the defenders' agent, had said that the road was in joint ownership, which it was not since he owned that section of the road.

[12]          In cross-examination Dennis Garson explained that his main concern was that if the road was altered there would be no limit to the number of vehicles that could go up there. He said that George Spence might want to build further up and that he could sell two or three building sites. He admitted that he did not get on with Mr Spence. When asked what impact widening the road would have on him he said that it would increase the amount of traffic and could wreck the water drains. However, he ultimately conceded that the drains could be accommodated. He pointed out that the ground was private property and belonged to him but could not answer what harm he was trying to prevent. When asked if it would be helpful to have the area of access road surfaced, Dennis Garson said that he supposed that it would be.

[13]          Dennis Garson agreed that he had placed posts along the edge of the access road in July 2008 at the section where damage had been done by vehicle wheels. He said that he had been advised to do this by the solicitor then acting (not the solicitor currently acting). He stated that George Spence had pulled them all out.

[14]          Dennis Garson presented as someone unaccustomed to being in a formal setting such as a court but who was careful to explain the history of events. He took care in his evidence and did not seem prone to exaggeration. At first he said in cross-examination that he did not remember objecting to the planning application but then said that he did not remember much about it. I found him to be generally truthful but to be more reliable on matters such as the local history of the site than on more technical matters such as the planning applications. As regards these more technical matters, Dennis Garson was guarded in what he said at first but generally then agreed with propositions put to him, which clarified his position to an extent. When pressed as to matters he was not rigid but was prepared to take on board what was being put to him and to alter his evidence as a result. In some respects I was unable to accept the evidence of Dennis Garson, such as in relation to whether a drainage pipe which he had installed at the access roadway carried water from the washing machine, garage and kitchen or not. I preferred the evidence of Ms Johnston that it did and of Mr McLeish that Dennis Garson had previously said that it did. However, matters such as these were minor.

Kathleen Ann Johnston

[15]          Kathleen Johnston stated that she was aged 49 and was employed as a secretary at Isbister Brothers. She had lived with Dennis Garson at Newcastle since about 1977. She confirmed that a half share in the property had been transferred to her on 8 December 2006. When the terms of an Affidavit from George Spence was put to her, Ms Johnston agreed that the access road had been used by the proprietors of Capilano for pedestrian and vehicular access to and from Capilano Cottage from 1975 to the date of the Affidavit in 1987.

[16]          Ms Johnston said that the tarmacadam at the bell-mouth of the access track had been placed there by the Roads Department about 15 to 20 years ago. She said that no-one had been asked about it but that the Roads Department always took tar up everyone's drives when doing the roads.

[17]          Ms Johnston recounted that in July 2008 Mr Sutherland of Summerbank Contractors had asked if he could leave plant at the yard of Isbister Brothers. He was allowed to do so. She stated that he said that he had a road end to dig up and a foundation to dig in the area. The only proposed new house that she knew of in the area was that of the defenders. As a result the legal proceedings were initiated and an interim interdict obtained on 1 August 2008 which remained in place.

[18]          Ms Johnston agreed that Mr and Mrs McLeish were "a nice couple". When they first moved there they had visited each other. However, she appeared to take issue with the defenders approaching Orkney Islands Council again to see about "relaxing" the conditions relating to the access road and asked why they had not contacted them. She went on that the defenders had then come to them to see what could be done but that she and Dennis Garson were adamant that they did not want the road altered in any way.

[19]          Nor did Ms Johnston agree to the envisaged road works which were outlined in the letter dated 5 June 2009 of Peter Finnigan.

[20]          Ms Johnston saw the proposed change to the access road as being of no advantage to them and only as of advantage to Mr and Mrs McLeish. She saw the disadvantage as being that it was going to cause more traffic. Being in the first house on the track it would all have to pass them. She pointed out that if the roadway was widened and the Road Services agreed that it met what was required Mr and Mrs McLeish would build an additional house with a double garage. She added that they could not build that unless the road was changed.

[21]          Ms Johnston confirmed that her position as to the access road was not about money - she had never asked for that.

[22]          Ms Johnston was a very precise witness who was very frank and who I took to be honest in her accounts. She had a good recollection.

Stanley Garson

[23]          Stanley Garson, a farmer aged 57, stated that he had owned Newark Farm since November 1986. He said that the fence shown in photograph 1 of No 5/3 of Process was undoubtedly the boundary between his land and the neighbouring property. The fence had not been moved. He maintained it.

[24]          Stanley Garson confirmed that Mr and Mrs McLeish had approached him on different occasions about buying a part of the adjacent field. He said that he had been totally inconclusive.

[25]          Stanley Garson's evidence was generally undisputed.

James Walls

[26]          James Walls, a farmer aged 65, explained how his uncle, Albert Linklater, used to live in Quayloo Cottage, for about 60 years until 1976. This cottage, now a ruin, is in the field at one end of the access track along with Quarrybanks. His uncle had kept his car in a garage at Snea, on the other side of Breckside Road. As Quayloo Cottage was situated in a field, the access route for the last section in the field was not passable in winter. James Walls' evidence was generally undisputed.

Helen Gibson

[27]          Helen Gibson stated that she owned Capilano Cottage from about 1970 to 1976. In 1970 it was known as Newark Cottage and was a two room cottage. Ms Gibson said that she and her then husband, Peter Davidson, extended the house by building three bedrooms, a bathroom and a hallway. A friend who was a joiner and Dennis Garson helped them. Ms Gibson took the stone from a wall which they took down in a wheelbarrow and left it on the access road as far as the bend of the access road to Newcastle. She said that a tractor was driven over it and then chipped stones were added on top. Stanley Garson, the farmer, had no objection to them disposing of the stones in this way. At that time the track ended at her garden.

[28]          Ms Gibson stated that the main traffic at that time was cars coming to their property. Ms Gibson's ex-husband had a tractor and the building materials were mainly brought to the house on a trailer behind it. Stanley Garson, the farmer, used the access road with his tractor. She also said that an oil tanker delivered oil for her stove twice a year.

[29]          Ms Gibson was straightforward and forthright in her evidence, which I generally accepted.

Mark Jones

[30]          Mark Jones, aged 49, was a farmer in Orkney and a Parliamentary candidate in Aberdeen South. His mother, Eileen Jones, lives at Valentines, which is next to Newcastle, situated on Breckside Road. He said that they do not require to use the access track. He confirmed that the letter dated 9 May 2007 from his mother set out her objections (eight in number) to the defenders' Planning Application. Mr Jones recalled being at a Hearing in relation to the Application but was vague as to his recollection of how the defenders' agent had described the access track, reporting that he had said that it was shared access or shared right of way or shared ownership. Mr Jones explained how he had been going to Valentines when he had encountered Dennis Garson, who was rather agitated, along with George and Margaret Spence when the metal posts were visible in the back of the Spences' open truck. Mr Jones' evidence was generally undisputed.

David Rendall

[31]          David Rendall, aged 59, is the Assistant Director of Operations with Orkney Islands Council. He was Head of the Roads Department when the defenders' Planning Application was made. He had no personal involvement with the planning application although he had visited the site in connection with this case. He explained how the Council have developed a Roads Development Guide which is generally available and which, if followed, meant that developers could be assured that the Roads Authority would approve their proposal. The diagram headed "Verge" placed at the end of No 5/1/6 of Process was a copy extract from that Guide showing a typical access for single development of up to four houses. Mr Rendall explained the purpose of such access provisions as being twofold - first, to try to ensure that a car could enter the access road at the same time as one exiting it and, secondly, to provide a bitumen surfacing to ensure that parts of the access road were not taken onto the public road by a vehicle leaving the access road. To meet the second purpose, the area hatched on the diagram had to be constructed to the specification (set out towards the lower right-hand-side of the plan).

[32]          Mr Rendall observed that the alternative proposal which is shown in Plan 389/SK/2 differs from that set out in the Guide in that the tarmaced area is not five square metres at the entrance. It is greater at the mouth - 5.9 metres - but less further in as the access road progresses. He confirmed that this had been deemed suitable for the conditions on the ground there. Mr Rendall observed that the site had been inspected by two of his officers and that the Roads Authority had informed the planners in writing that the alternative proposal was acceptable. In making that assessment his officers would have looked only at road safety.

[33]          Mr Rendall was shown Mr Finnigan's letter of 5 June 2009. When asked if the envisaged works would prove satisfactory he stressed that this was very much subject to ground conditions. He did not allow himself to be drawn on this before the work had been done but stressed that it would have to be carried out to meet the legal requirements and standards. The impression given was of some scepticism but that he could not rule out the possibility of the work being done satisfactorily in his way.

[34]          Mr Rendall was a clear and careful witness who explained in a professional manner the Roads Authority's role in the planning process and whose evidence I accepted.

The defenders' evidence

James McLeish

[35]          James McLeish, aged 73, is a retired Chartered Development Engineer with Rolls Royce. He said that he and his wife Betty reside at Rake Hill, Egginton Road, Etwall, Derby, and in 1997 bought Skerrivore, Sandwick, Orkney. In selling them the property Mr Wrigley informed them that there might be a problem with the access road. He had obtained affidavits from Katrina Mainland and George Spence regarding access to the property. In purchasing the property he was satisfied that the access which had been established was all that they required.

[36]          Mr McLeish indicated that his wife is from South Ronaldsay. He said that they came to Skerrivore for about three weeks three times each year. They had generally got on well with the pursuers, visiting each other when they were on the island. Eventually, they had intended to sell their house in England and reside permanently on Orkney.

[37]          Mr McLeish stated that while he and his wife had at first considered building an extension to Skerrivore, this had not proved practicable. They, therefore, consulted with Mr Finnigan, an architect, as to plans for a new house. He said that they had told the pursuers this and that they had provided them with a list of builders. In April 2007 an application for planning permission had been lodged by Mr Finnigan. On 4 July 2007 a Hearing was held in relation to the Planning Application. Mr McLeish explained that he had not received the Agenda for the Hearing in advance. After the meeting he had received a telephone call from Ms Johnston who had received the Agenda. He was surprised to learn from her that she and Dennis Garson had objected to the Planning Application on the basis that the new house would shade their vegetable garden and she also complained to him about the widening of the access track. Mr McLeish expressed his concern, since had he known that there was to be any suggestion of alterations to the access road they would have gone to tell the pursuers about this. Mr McLeish advised that he had sent a letter to Alastair Banks, the Planning Manager, to complain about not having been told about this in advance, with a copy being sent to the pursuers. Mr McLeish explained that had he and his wife or Mr Finnigan been aware of this beforehand they would have had the opportunity to discuss it with Dennis Garson and Ms Johnston. While Mr McLeish saw this as an administrative blunder, it appeared that this was to be the start of a rift between the parties in relation to making any changes to the access road.

[38]          Mr McLeish explained how he had contacted Stanley Garson with a view to purchasing either a triangular piece of his adjoining field eight metres long to accommodate the bell-mouth of the shared access road or a 60 metre long strip of the field three metres wide which could have provided a strip to join up with the access road. He said that Stanley Garson had never said whether he would or would not sell part of the field, nor had he proposed a price.

[39]          Mr McLeish continued that in April or May 2008 he and his wife had attended a meeting with Alastair Banks, Margaret Gillan, the planning officer dealing with the application, a roads engineer, and Mr Finnigan. The officials were very sympathetic and arising out of that meeting Mr Finnigan reviewed the access arrangements and drew up a sketch showing how the access way might be widened by a narrowing of the verge on the right hand side exiting the access road, as depicted in Plan 389/SK/2. However, he said that there was no communication with the pursuers or their agents. The access improvements proposed as shown in Plan 389/SK/2 were approved by the Roads Authority as being satisfactory, as confirmed in the letter from the Planning Manager of Orkney Islands Council dated 1 July 2008, No 6/3/5 of Process.

[40]          Mr McLeish recounted that when on 1 August 2008 the Initial Writ was served upon them they were completely astounded, shocked and upset. He said that they had planned to attempt to have the access condition lifted and had made no attempts to carry out any widening work. He said that the following Monday he and his wife went to see Craig McInnes at the Council offices who advised them that while they could proceed to apply to have the condition lifted the Council was unlikely to consider this while a legal dispute was continuing. The Roads Authority have not, therefore, yet been asked to reconsider whether the existing access would be sufficient.

[41]          Mr McLeish stated that they had approached Graham Brock, a builder, about work on the new house but that nothing had been done by them or on their behalf about instructing work to the roadway.

[42]          Mr McLeish confirmed that they had always said that in carrying out any works they would keep disruption to a minimum and make good any damage which did accidentally occur.

[43]          I allowed Mr McLeish to be recalled to speak to an incident which had occurred subsequent to him giving his evidence. He said that on 14 August 2009 an oil tanker was delivering a supply to Skerrivore. He took a photograph of the lorry as it manoeuvred out of the entrance of the access road. He estimated that the rear of the lorry was about one foot or less away from the strainer post at the corner of the field.

[44]          Mr McLeish appeared to be an honest witness and I accepted his evidence to that of Dennis Garson in the minor matters upon which it varied.

Peter Finnigan

[45]          Mr Finnigan is an architect. He explained that in late 2006 he was engaged by the defenders. He spoke of his involvement in the planning process in connection with the building of the proposed house at Skerrivore. In his experience in Orkney most of the problems in the planning process were looked at in a practical fashion. He said that generally folk there were prepared to give or take a foot or so in relation to their properties. He explained how the defenders had gone out of their way to try to buy land from the neighbouring farmer in order to obtain their own bell-mouth. They had also looked at buying other land in order to form a new track to the house but due to practical difficulties had been unable to do this.

[46]          Mr Finnigan confirmed that the difference between his plans 389/SK/1 and 389/SK2 was that the grass verge would be reduced from 1,250 mm to 500 mm and the width of the roadway increased thereby to 3,250 mm. Mr Finnigan described the work which would require to be carried out in order to tarmac the area, as outlined in his letter of 5 June 2009. He estimated that if no concrete was needed the work would take about two hours. He said that he would intend to use the main contractor for the house to carry out the work to the road. If he was an approved contractor he would do the work himself; if not, he would sub-contract this to an approved contractor.

[47]          Mr Finnigan's understanding of ownership of the access road was that ownership was shared between the three parties who used the road, namely the pursuers, the defenders and the owners of Glenavon. He said that the defenders had told him that the road was in shared ownership.

[48]          Mr Finnigan was asked to consider the damage occasioned to the verge. When asked to compare this with the area of ground proposed to be altered which is hatched red in the Photograph at 6/3/13 he observed that it was similar, or that the tracks shown went slightly further than the area hatched.

[49]          Mr Finnigan said that he had arranged a meeting for the defenders to see Brock Brothers, who were builders. This was to introduce them to a builder, not to award a contract to them.

[50]          Mr Finnigan was a very careful witness and I took him to be an honest and reliable witness.

Peter Davidson

[51]          Mr Davidson lived in the house known as Skerrivore, then known as Capilano, when he was married to Helen Gibson in about 1970 to 1973. He gave evidence that at that time the access way was a grass track. They were going to carry out work on their house and needed better access. He said that he and Ms Gibson had cleared out the path. They had hired an excavator and a driver and had scraped out the grass at the centre of the track. This had been placed in holes in the field at Capilano. The surface then was hard, being largely down to rock. It had been levelled and rubble from a wall which they had knocked down had been taken down by wheelbarrow and placed on the road. He said that Dennis Garson had been there but had not had to do much. Mr Davidson was adamant that the stretch of access way where the grass had been cleared was from the public road to their property at Capilano. Mr Davidson was very straightforward in giving his evidence.

Colin McBeath

[52]          Mr McBeath, the Manager at Barton's Scrapyard, gave evidence of having attended at the bell-mouth of the access road on 1 April 2009 after receiving a telephone call from Ms Johnston about damage to the verge by a lorry from Bartons Scrapyard driving over it. He had inspected it. His driver had been driving a 10 metre 3 axle rigid lorry. In his opinion his driver could not have avoided going onto the verge. He saw the difficulty as the opening being very narrow. He considered that anything larger than a long wheel based van would have difficulty at the entrance of the access road. He pointed out that there is a ditch on the right hand side which any driver would have to avoid.

Iain Sutherland

[53]          Mr Sutherland has a construction, concrete and steel business operated under the name of Sutherland of Summerbank Contractors Limited. He stated that he did not know the defenders nor had he ever been instructed to do work for them. In particular, he had never been instructed to work on their access road nor to have had a commencement date of 4 August 2008. He said that he had been carrying out work laying a concrete floor in the cold store at Isbister Brothers in July 2008 and had left his plant there while doing it. He added that his company carried out sub-contract work to Graham Brock Builders and that Mr Brock had said that he would be doing work in the area and that he would come to him for a quote but that he had never given him a price. He said that he did not know where the job was and in conversation with Isbister staff he had wondered where this would be. Mr Sutherland was very clear in his evidence which was unchallenged and which I accepted.

Katrina Mainland

[54]          Mrs. Mainland stated that she had lived at Capilano from 17 June 1987 until 7 March 1997. She owned it with John Louttit from 1987 until his death in 1994 at which point it was owned by herself alone until 1997. They had purchased the property from the Bank of Scotland, who had repossessed it from the prior owners, Mr and Mrs Francis Merrick. She said that from 1987 to 1994 the access road to Capilano Cottage was used for pedestrian and vehicular access openly, peaceably and without interruption. She said that she had carried out repairs to it when necessary, such as filling in pot-holes, from the entrance of the access road up to the house. She said that John Louttit ran a car hire firm from there which operated several cars, mainly driven by him but occasionally also by other drivers. He also carried out repair and maintenance work on about six cars each year. She said that she had a car and a long wheel based Land Rover. She operated a croft and took the sheep and goats via the access road in a trailer towed behind the Land Rover. She initially had eight cattle which were delivered in a large cattle trailer behind a tractor.

[55]          Mrs. Mainland at first said that there were no challenges involved in driving vehicles into the access road. When pressed on this she said that most large vehicles had to cross onto the verge in order to turn the corner where the access road met the public road. She referred in particular to lorries. She observed that the road is narrower now since plants have been grown in the verge on the right hand side, looking from the main road. Before, this had been a narrow grass strip. Mrs. Mainland explained that while she had never had any question raised about the right of access to the property while she had lived there, there had been a challenge to it after she had agreed a sale and left the property.

[56]          Mrs. Mainland was a frank witness who appeared to have good recall. I was concerned, however, as to her evidence about the verge since she at first said that no challenge was presented in driving into the access road, then when pressed was fairly general about lorries passing onto the verge. Her evidence as to the verge nearer Newcastle being narrower also meant that there was more room at that time on the right hand side for vehicles and less likelihood of crossing onto the verge at the left hand side. This left me in some doubt as to whether to accept that lorries had regularly ventured onto the verge when she lived at the cottage.

Submissions

[57]          On behalf of the pursuers their solicitor accepted that there was a servitude right of access over the roadway which had been exercised by the subjects of Newark/Capilano/Skerrivore in excess of 20 years. She submitted that there was no express grant of a right of servitude amongst the titles of Newcastle, the servient tenement. She maintained that the burden relating to a right of way over the access road contained in the Disposition in favour of Dennis Garson was not of the nature of a servitude right. The solicitor for the pursuers submitted that the continuous exercise of the right of access dated from 17 June 1987, the date of the Disposition to Katrina Mainland and John Louttit. The solicitor submitted that the exercise of the right defined the extent of the right. She interpreted this as meaning that for the defenders to enjoy the right to improve the access way a right of improvement would have to have been part of the use of the right. The solicitor for the pursuers indicated that the pursuers were only seeking interdict in terms of Crave 2. Reference was made to Carstairs v Spence 1924 SC 380, Alvis v Harrison 1991 SLT 64, Drury v McGarvie 1993 SLT 987 and Wimpey Holding Ltd v Collins 1999 SLT (Sh Ct) 16.

[58]          On behalf of the defenders Counsel submitted that the defenders had a right of access constituted by prescriptive possession exercised since 1970. He contended that this included the right to make use of the verge of the access road, including at the bell-mouth as and when required. He pointed to two instances in the evidence where a vehicle had crossed onto the verge, in March and April 2009 and to a lorry on 14 August 2009 being on or near the verge, and also to the evidence of Mrs. Mainland. Apart from that he pointed to the occasional use that had been made of the road by lorries and large vehicles and invited me to infer that they would have used the verge to turn the corner. Counsel categorised the work which the defenders hoped to carry out as an improvement to the road. He confirmed that the work would be that as outlined in the letter of Mr Finnigan dated 5 June 2009. In his submission the improvement was of a type which was permitted. When asked for clarification as to the entitlement to perform the works, Counsel confirmed that the defenders maintained that the need for the work to be done related to them as owners of their existing house at Skerrivore and not in relation to the proposed building of a new house there.

[59]          In reply the solicitor for the pursuers accepted that the continuous exercise of the right of access extended back to 1970.

Decision

Planning permission conditions

[60]          While the conditions attached to the grant of planning permission for the erection of a new house at Skerrivore may lie at the root of this case and although detailed evidence was led at the Proof in relation to that, in his submissions Counsel for the defenders did not seek to advance this as a basis for carrying out the proposed works to the bell-mouth of the access road to Skerrivore. Although in reality that may be why the works are desired, he relied instead upon the proposition that the defenders were entitled to carry out such works by reference to their existing requirements. Though not cited before me, this approach has a number of parallels with that taken in SP Distribution Ltd v Rafique, Edinburgh Sheriff Court, 27 August 2009, where Sheriff Principal Bowen observed:

"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." [para 14]

[61]          The defenders have explored to some extent with planners the possibility of obtaining an alternative practical solution regarding access in order to enable them to build a new house. They have explored the possibility of buying part of an adjacent field with Stanley Garson. However, the defenders felt that the discussions were going nowhere. While there is also the other end of the access road which leads to the field in which the ruin of Quarrybanks is situated, no evidence was led as to the feasibility of acquiring a strip of the field there and laying an access way via this route. Mr Finnigan did refer to other land which had been considered, which may have related to this field. To date no alternative solution has been found to enable the defenders to build the new house which they would like at Skerrivore. They, therefore, rely upon the proposition that they are entitled to carry out the road widening works by reference to their existing requirements.

Nature of the right

[62]          It was agreed by both parties that the defenders have a servitude right of access over the road.

[63]          The Disposition in favour of Dennis Garson states that the subjects were conveyed under "the burden of all rights of way over the continuation westwards of the said access road formed on the north boundary of the said subjects". While this protected the general rights of access which had been enjoyed until that time, it did not involve a specific right of access to named properties.

[64]          It was a matter of agreement that the right of servitude in this instance was one which was acquired by prescription in terms of section 3(2) of the Prescription and Limitation (Scotland) Act 1973. There has been continuous exercise of the right of access to the house at Skerrivore from 1970. From then until 1976 it was exercised by Helen Gibson. Ms Johnston confirmed that this continued between 1976 and 1987. From 1987 to 1997 Katrina Mainland, initially along with John Louttit, exercised this right of access. In 1997 it was exercised by Mr and Mrs Wrigley and thereafter by the defenders.

[65]          It has long been held that the prescriptive use of a private way not merely establishes the existence of the right, but, in some most important ways, defines the extent of that right: Carstairs v Spence 1924 SC 380, 385.

[66]          The defenders sought to establish that the physical extent of the servitude right of access over the prescriptive period included the right to make use of the verge of the access road at the bell-mouth as and when required. There were three specific instances in the evidence where a vehicle had crossed onto the verge, namely in July 2008 and in March and April 2009. Further, on 14 August 2009 an oil tanker was on or near the verge. The only direct evidence in support of the proposition that this was something that had routinely happened over the prescriptive period came from Mrs. Mainland, who resided at Skerrivore (as it is now called) from 1987 to 1997. Mrs. Mainland's position when asked a general question was that there were no challenges involved in driving vehicles into the access road. However, when asked directly about vehicles being on the verge she did say that most large vehicles had to cross onto the verge in order to turn the corner.

[67]          I did not regard the recollection of Mrs. Mainland as sufficiently reliable to find this established. Mrs. Mainland's observation that the road is narrower now, since plants have been grown in the verge on the right hand side, is also of relevance. This would have meant that there would have been less need before the bushes were grown for vehicles to veer towards the left hand verge. Colin McBeath did provide some opinion evidence that larger vehicles would have had difficulty at the entrance of the access road. However, I still did not consider that this would mean that drivers would necessarily repeatedly have been going onto the verge throughout the prescriptive period. Weighed against that was Ms Johnston's reaction on 1 April 2009 when the verge was damaged by the scrap lorry. She immediately went up to complain to the defenders and called Mr McBeath, requesting that he attend to view the verge, which he immediately did. This gave the impression that what had occurred was something which was notable to her, rather than something that was run-of-the-mill. It indicated that this was a relatively novel and unusual occurrence. Therefore, while there was evidence that in July 2008 and on at least two occasions in 2009 vehicles had passed onto the verge in order to turn into or out of the access road and some evidence to that effect from Mrs. Mainland, I did not regard there as being sufficient evidential support to establish that the right of access had regularly extended to the verge over the prescriptive period.

Permissibility of proposed works

[68]          Had the proposed actions been absolutely necessary in order to render the servitude capable of exercise there may not have been any question but that they could be carried out by the dominant proprietor: cf Cusine and Paisley, Servitudes and Rights of Way, 12.124. However, access is currently being exercised.

[69]          Similarly, should the proposed actions be reasonably necessary in order to render the servitude effectual they might be considered to be permissible and within the extent of the right: cf Cusine and Paisley, Servitudes and Rights of Way, 12.125 and 12.127.

[70]          Counsel for the defenders argued that dominant proprietors holding a servitude right of access were entitled to sufficient width to ensure safety. Carrying out the works might be said to be justified upon the basis of the servitude right of access established by prescription if the defenders were able to show that the activities were required as a reasonable necessity, to provide a margin of safety: cf Cusine and Paisley, Servitudes and Rights of Way, 12.125. While in certain circumstances this might permit a widening of the road, such as if the road was so narrow that vehicles could not pass safely, that is not what the evidence has demonstrated in this instance. Most vehicles were able to enter and leave the access road without difficulty. Larger vehicles such as lorries did have some difficulty in turning into or out of the access road and in some instances have passed onto the verge. There was no evidence, however, that this presented any obstacle to the vehicle in carrying out its manoeuvre. It simply meant that wheel tracks were left on the verge and that on 1 April 2009 the drain pipe under the verge was left exposed. Thus, the resultant problem was to the servient tenement rather than to the drivers of the vehicles. The justification provided was essentially not that the envisaged work would be reasonably necessary to enable lorries to turn the corner but rather that it would prevent damage to the verge at the corner. It was not, therefore, based upon the issue of safety.

[71]          There may be several times each year when a lorry requires to use the access road, such as in delivering oil. On some of those occasions the wheels of the lorry may venture onto the verge. The lorry driver ought to be able to take the corner that way, if unable to remain on the roadway. In so doing tyre tracks may be left imprinted in the verge. The pursuers do not object to lorries using the access road. Therefore, if the lorry driver finds that he cannot turn onto the main road without some of his wheels crossing onto the verge, the pursuers are presumably prepared to tolerate that. However, as the effect of widening the roadway would be to prevent damage to the verge rather than to provide access it could not be said to be rendering the servitude less difficult or providing a margin of safety. In my view it has not, therefore, been established by the evidence led that the notion of margin of safety can be invoked by the owners of the dominant tenement in order to carry out the works to the servient tenement.

[72]          The envisaged widening of the road was advanced on behalf of the defenders as being an improvement which was of a type permitted in terms of the defenders' servitude right. In this connection, regard might be had to the contention of Cusine and Paisley in Servitudes and Rights of Way. They refer to the situation where a servitude is already effectual and the dominant proprietor merely wishes to carry out actions which increase the burden on the servient tenement because the activity facilitates something which he wishes to do on the dominant tenement. They state that whether such actions are permissible:

"depends on whether the extent of the right is sufficient. If the extent of the right is limited to the existing burden, the actions are impermissible, as is likely to be the case if the servitude is established by the exercise for the prescriptive period and its measure is governed by the maxim tantum praescriptum quantum possessum." : at 12.127.

[73]          In considering whether the pursuers as servient proprietors are obliged to submit to these proposed activities on the part of the defenders as dominant proprietors, the test has been formulated as being that the dominant proprietors in a servitude of access are entitled to carry out some physical works in relation to the servient tenement, subject to the limitation that the permitted works are limited to those which do not change the character of the road or increase the burden on the servient tenement: Stevenson v Biggart (1867) 3 SLR 184; Smith v Saxton 1928 SN 59; Alvis v Harrison 1991 SLT 64, Lord Burton v Mackay 1995 SLT 507; Cusine and Paisley, Servitudes and Rights of Way, 14.15.

[74]          In Lord Burton v Mackay 1995 SLT 507 Lord Coulsfield found that the character of a road had not been changed, recording that its width had not been increased: at p. 510. An implication might be taken that this was of some significance and that the widening of the road might have altered its character. Improving a roadway by bettering its surface should not have any adverse effect upon the servient tenement, involving as it would only an up-grade to the roadway. However, widening the roadway would have a consequential effect upon the verge, which would be reduced thereby. While the road would remain a road, the nature of the verge would be changed. The nature of the road would be altered only in as much that the bell-mouth at the roadway was widened and part of a verge which is currently grassy - and muddy if it has been driven over - would be converted into part of the roadway. However, this has to be taken in conjunction with the knowledge that carrying out the envisaged works to widen the roadway to the satisfaction of the Roads Authority will meet the planning condition and enable a further house to be constructed at Skerrivore. This will involve traffic accessing the site during construction. Thereafter, at some point the property could be sold either separately or as a whole. At some point both houses could be occupied, with the roadway then being used by three other houses apart from Newcastle in place of the existing two. Accordingly, while the alteration to the nature of the road would be minimal, it will result in the road being frequented by more traffic causing loss of privacy and noise. That will amount to an increase in the burden on the servient tenement, which is something that the servient proprietors oppose.

[75]          In this respect a distinction has to be drawn between those servitudes of access constituted by prescription and those created by express grant, which might by their terms provide the opportunity to improve and permit the upgrading of a verge to a roadway: cf Alvis v Harrison 1991 SLT 64 and Wimpey Holding Ltd v Collins 1999 SLT (Sh Ct) 16. In Alvis v Harrison the Lord Ordinary awarded damages to the owner of the servient tenement where the owner of the dominant tenement had encroached upon the verge of a driveway by constructing a bell-mouth for a new access road. In that case the strip of verge was approximately 150 cm (given as 5ft.) wide and 15m. long: Alvis v Harrison 1989 S.C. 136, 139. The House of Lords allowed an appeal from the Inner House, which had upheld the award. The House of Lords held that the Lord Ordinary and Inner House were in error in applying principles which were appropriate to a right of access acquired by prescriptive possession rather than to a right acquired by express grant: 1991 SLT 64, 68. Since there was an express grant, the servitude right of access was construed in the light thereof and was found to permit the encroachment. However, the House of Lords did not take issue with the principles applied by the Inner House had the servitude been one acquired by prescriptive possession, as is the case here. In the Inner House the Lord Justice Clerk held that:

"As owner of the dominant tenement with a right of access over the driveway, the defender is entitled to keep it in order for his own use (Bell's Principles of the Law of Scotland, s. 984), but, in my opinion, this gives him a right to repair the driveway when necessary but not a right to alter the nature of the verge. There is a presumption in favour of freedom (Rankine, The Law of Landownership in Scotland (4th ed.), p. 417) and the owner of the servient tenement is not obliged to make up or repair the surface of the access nor to acquiesce in any alteration to the surface carried out by the owner of the dominant tenement.": 1991 SLT 64, 67.

An application of this dicta to the present case further indicates that the defenders do not have the right to alter the nature of the verge.

[76]          While a servitude right requires to be exercised civiliter, parties did not raise this as an issue here. As Lord Rodger of Earlsferry has commented, this contention only comes into play once the scope of the servitude has been determined: Moncrieff v Jamieson 2008 SC (HL) 1, para 95. Parties, therefore, addressed themselves to the issue of whether the carrying out of the proposed works came within the scope of the servitude right of access in this case. While Counsel for the defenders contended that it did, he did not address whether the requirement to exercise the right civiliter would have affected the entitlement to widen the roadway at the bell-mouth, although it might have been implicit that he considered that this would comply with the requirement. Having reached the conclusion that the servitude right and its scope do not extend to authorising the proposed works, the question of the exercise of the right civiliter in this context does not arise.

[77]          Since the proposed works in relation to the servient tenement would alter the nature of the road in a manner which would increase the burden on the servient tenement, I have concluded that they are not permissible by way of an additional right on the part of the defenders as dominant proprietors and cannot be insisted upon by the dominant proprietors.

Entitlement to interdict

[78]          While the Proof mainly concerned the issue of whether or not the works would be permissible, the remedy sought is not one of declarator but of interdict. This is not a situation where any illegal operations have actually been carried out and Mr McLeish, who was an impressive witness, was at pains to point out that no instructions had been given by himself or his wife to carry out the envisaged works. In Moncrieff v Jamieson 2008 SC (HL) 1 Lord Hope of Craighead had regard to the history of the case and the relentless way in which the issues had been litigated as justifying the granting of interdict: para 95. Neither is that the position in this case.

[79]          However, what is significant is that an architect acting on behalf of the defenders has advanced a proposal to the Planning Authority which would entail these works being carried out. While the defenders have not instructed any actual construction work to be carried out, they have authorised their agent to propose to the Planning Authority that if the work were to be carried out the access to the road would be sufficient. It is not, therefore, as if nothing has been done in this regard on their behalf. I have concluded that such works would not be permissible in terms of the current servitude right of access and there is no other basis advanced by the defenders to justify them. That the works be carried out to the satisfaction of the Roads Authority remains a condition of the grant of Planning Permission. In my estimation the actions taken on behalf of the defenders in taking steps relating to widening the road, such as in obtaining Planning Permission with this forming a condition thereof, are sufficient to give rise to a reasonable apprehension that the proposals might be acted upon and to justify the grant of the remedy sought.

Expenses

[80]          Parties asked that the question of expenses be reserved and a Hearing shall be assigned in order to deal with them.

_______________________________