Lands Tribunal allows variation of servitude right to disapply fencing requirement

The applicants sought variation of a title condition requiring them to maintain fencing around an access road over which their neighbours enjoyed a servitude right of access. With the applicants’ neighbours opposing the application, the matter fell for determination by the Lands Tribunal for Scotland.

Following written submissions and a site inspection, the application was decided by Lord Duthie and Craigie Marwick.

Fencing requirement no longer serving intended purpose

In 1987, a plot forming part of the farm and lands of Carnwath Mill, South Lanarkshire, was disponed. The disposition creating that plot, now known as The Lint Mill, granted the disponees a servitude right of access over a road within Carnwath Mill leading to their property, obliging the owners of the latter property likewise to maintain wire fencing separating the road from the rest of the farm.

Following various subsequent subdivisions of the rump plot, around 29 metres of fencing came to lie on land owned by the applicants. Arguing that the fencing no longer served its intended purpose, given that the condition was created at a time when their property was used as a working farm, they applied to the Lands Tribunal for Scotland under section 90(1) of the Title Conditions (Scotland) Act 2003 for variation of the servitude right. To continue to require fencing, they argued, would prevent use of a significant parcel of their land while affording only limited corresponding benefit to their neighbours.

In turn, the respondents maintained that the fence continued to confer “a substantial practical benefit” upon them; namely, that it separates the access road from the surrounding land and clearly delineates the area in which the servitude is exercisable. The applicants’ difficulties, they submitted, arose not from the fencing requirement but rather from the manner in which the former farm had been subdivided.

The dispute came before the Lands Tribunal for Scotland, which under section 98 of the 2003 Act must vary a condition upon application where satisfied that it is reasonable to do so, having regard to the factors set out in section 100. Among those factors lie the age and purpose of the condition; any change in circumstances since its creation; and the balance of benefit and burden between the properties concerned.

Materially different physical and ownership context

The tribunal began its decision by observing: “The respondents argued that any practical difficulties experienced by the applicants result from the subsequent subdivision of the former farm rather than from the fencing provision itself. We do not regard that as determinative. The statutory question is whether, having regard to the section 100 factors, it is reasonable that the condition should continue in its present form. A title condition does not become immune from variation merely because changes in surrounding circumstances, rather than changes in the condition itself, have altered its practical effect. Equally, the extent to which any prejudice suffered by the applicants is attributable to the fencing provision, as opposed to other features of the land, remains a relevant consideration in the assessment required by the Act.”

Turning to consider the various section 100 factors, the tribunal noted: “There has been a material change in circumstances since the condition was created. The original farm holding has been divided into separate ownerships and separate titles. It appears to be accepted by both parties that subdivision has occurred since 1987. The applicants’ parcel, through which the access road passes, extends to approximately 0.3 acres and is bounded on most sides by land outwith the applicants’ ownership. The physical and ownership context in which the fencing provision now operates is therefore materially different from that which existed when the condition was created … Accordingly, factor (a) favours variation.”

With regard to the respondents’ argument that the fence served to protect their servitude right of access from encroachment, the tribunal reasoned: “These are real and continuing benefits. Title conditions are not limited to protecting current interests and may properly protect future interests. However, having inspected the site and considered the title documentation, we are not persuaded that removal of the fence would impair significantly the respondents’ servitude rights. The route and width of the servitude are clearly specified in the respondents’ title and are readily identifiable on the ground. The presence of the fence now adds little in terms of identifying the limits of the servitude. The route is sufficiently defined by the title documentation that uncertainty regarding its location is unlikely to arise.”

As to the respondents’ submission that the applicants’ complaints could be overcome through the creation of a new access route, the tribunal added: “We are not persuaded that the possibility of creating an access through the roadside boundary stone wall is a convincing answer to the applicants’ case. The parcel of land is bounded along Spittal Road by an established low stone wall. Creation of a new access would require alteration of that boundary feature and would provide access directly from a public road. We are satisfied that the fencing provision materially restricts convenient access within the applicants’ property and to the larger part of the parcel lying beyond the fence. The possibility that an alternative access could be created does not remove that restriction. It merely identifies another means by which it might be overcome.”

The tribunal concluded: “Having regard to the continuing servitude rights enjoyed by the respondents, the limited practical benefit now conferred by the fencing provision and the impediment to the applicants’ enjoyment of their property caused by retention of the title condition, the balancing exercise favours the applicants. We are satisfied that it is reasonable that the condition be varied as sought. The original agricultural context in which the condition in question was created has materially altered. The purpose for which the stock proof fence was imposed remains intelligible but has diminished in practical significance. The respondents continue to derive some benefit from the presence of the fence, but the servitude route is clearly defined and will remain fully protected and fully exercisable if the variation sought is granted.”

The application was accordingly allowed.