Inner House affirms limits of servitude access right

A servitude right of access to one site cannot be used to park on that site with a view to onward travel to an adjoining site, the Inner House of the Court of Session has affirmed.

Lord President Carloway, Lord Brodie and Lord Malcolm gave the ruling in refusing a reclaiming motion by Iain Hawthorne and others, proprietors of Bieldside Lodge, Aberdeen, against the Lord Ordinary's decision to allow proof before answer in an action by Maren Ruddiman, proprietor of the neighbouring Bieldside House, for declarator and interdict against the defenders regarding their anticipated use of the driveway to Bieldside House.

The defenders previously owned both properties. They sold Bieldside House to the pursuer's predecessors in title, retaining an area which they divided into "site 1" and "site 2". They built Bieldside Lodge on site 1 and retained a servitude right of access over the driveway to Bieldside House; site 2 had an alternative access. 

The defenders made unsuccessful applications for planning permission for a house on site 2, to which they wished to take access via the driveway and site 1. The pursuer, who had obtained interim interdict, averred she was reasonably apprehensive of the defenders' intentions to use site 1 to access site 2 and as a car park for site 2. In their pleadings the defenders maintained that the servitude did not prevent any person from taking vehicle access to site 1, parking there and proceeding on foot to site 2.

Applying Irvine Knitters v North Ayrshire Co-operative Society (1978), the Lord Ordinary rejected the defenders' motion for dismissal and allowed proof before answer. On reclaiming, the defenders argued that there was no breach of the principle in Irvine Knitters and no excessive use of the servitude if they used the driveway to access site 1 for a lawful purpose and then moved to site 2. They had undertaken not to use the servitude to facilitate construction, there was no extant planning permission and a proof would serve no purpose.

Lord Carloway, delivering the opinion of the court, said the defenders’ use of the dominant tenement (site 1) as a means of allowing persons or goods  destined for site 2 to pass over the driveway on the servient tenement was not permitted under the principle in Irvine Knitters. "The use of a device, whereby a car park is created on the dominant tenement and to which the persons or goods would initially be going, does not alter matters. The dominant tenement would still be being used as a bridge to a non-dominant tenement."

Further, "The pursuer’s reasonable apprehension is amply vouched by the defenders’ repeated planning applications which propose access to site 2 by using, inter alia, access over the driveway (including for construction purposes)... The defenders’ undertaking does not assist. It is carefully drafted in such a manner as does not resolve the real issue between the parties; viz, the scope of lawful use of the servitude right."

A proof might serve little purpose, but the pursuer had not sought decree de plano, and in the absence of a motion for summary decree the case had therefore to proceed to proof.

Click here to view the opinion of the court.