Cupar hotel owners interdict servitude holder from damaging accessway gates with vehicle bar
A sheriff in Dundee Sheriff Court has found that the dominant proprietor of a servitude right over castle grounds in Cupar did not have his rights interfered with by the installation of gates along a road he used to access his property and interdicted him from further damaging or removing them.
Donald Skene originally raised the action seeking an order requiring Braveheart Hotels Ltd, of which a Mr and Mrs Blackburn were directors, to remove the gates, and to interdict them from narrowing or obstructing the access route. The defenders counterclaimed seeking interdict against the pursuer.
The case was heard by Sheriff Lorna Drummond QC. The pursuer was represented by O’Rourke QC and the defender by McKinlay, advocate.
The pursuer built his property, Fouracres, in 1990. It benefited from a servitude right of access over roads within the grounds of Fernie Castle, which the defenders began using as a hotel and wedding venue in 1998. The servitude right required to be exercised “in such a manner as will cause the minimum inconvenience and disturbance to the proprietors from time to time of the servient tenement”.
Following a number of near misses with vehicles, in 2018 the Blackburns erected two sets of gates along the northern section of the road. From this point, in order for the pursuer to access his property via the northern section he was often required to get out of his vehicle and drive through both sets of gates. An alternative accessway was possible via the southern section, which the pursuer was informed by letter that he was expected to use as a two-way system following the installation of the gates.
The east gates were not installed correctly, and consequently could be opened by either pushing them towards Fernie Castle or pulling them away from it, with the latter method being more difficult. The pursuer underwent a hip operation and thereafter struggled to open these gates. On one occasion in March 2020, he opened the gates by removing them from their hinges with a stick, and after installing a bar on his vehicle to open the gates he was cautioned by the police due to damage caused to them.
The pursuer raised an action challenging the erection of the gates in 2019. He averred that the gates were tantamount to an obstruction of the access route and sought an order interdicting the defenders from interfering with his access rights. The defenders counterclaimed seeking to interdict the pursuer from damaging the gates by driving at them in a vehicle or from interfering with their normal operation.
It was submitted for the pursuer that the gates constituted an unreasonable obstruction on his right of access. The defenders’ suggestion that the gates are used as traffic calming measures was designed to obscure their true motives of increasing the amenity of the castle. The evidence led from the pursuer, his son, and other users of the road made clear the difficulty of opening the gates and the increased danger of using the narrow southern section of the access route following their installation.
In support of their counterclaim, the defenders submitted that the installation of the gates was justified on safety grounds. There had been fewer accidents on the castle grounds since their installation, and no repeats of past incidents where children attending functions at Fernie Castle narrowly avoided being hit by vehicles. Further, the evidence led by the defenders made it clear that the east gates could be easily opened by a person of average strength when opened correctly.
Contributed to damage
In her opinion, Sheriff Drummond noted that all the witnesses were generally credible and reliable. On the difficulty of opening the gates, she said: “The majority of the pursuer’s witnesses stated that the east gates drag on the ground if pulled away from the Castle. I accept that evidence that if the east gates are pulled in a direction away from the Castle they require the operator to lift them up or to exert force in order to open them up.”
However, she went on to say: “The balance of evidence, in my view supported a finding that when pushed towards the Castle, in the direction indicated on the push sign, the east gates opened relatively easily. I could see that for myself in the video clip provided by the defenders. I accept Mr Blackburn’s evidence that no work has been done to the gate since they were installed to change how easily they open.”
Turning to the Blackburns’ motivation for installing the gates, she said: “I also accept the evidence of the Blackburns that their motivation for installing the gates was at least in part a health and safety one as explained in their letter of 23 December 2018.”
In determining whether the gates were an unreasonable obstruction of the pursuer’s access rights, Sheriff Drummond said: “The courts have consistently upheld the general right of the owner to erect gates provided they do not interfere, in a fair and reasonable sense of that expression, with the public right of passage.”
She continued: “It might reasonably be expected that a hotel owner would erect gates for the protection of their guests where guests exit and enter the hotel within 20 feet of the access route. In my view the erection of the gates is justified for that purpose. Two sets of gates do not seem to me to be an excessive number along the distance of the access route and the context of that setting.”
Evaluating the defenders’ counterclaim, she said: “By opening the gate with his utility vehicle away from the Castle, and dragging it across the tarmac, the pursuer has contributed towards the damage to the gate. I reject the pursuer’s submission that the pursuer is shown in the video footage as carefully opening the gates or nudging them open with his vehicle. The video image shows the vehicle opening the gates with relative force, relative that is to what might be used by a person opening them by hand.”
She concluded on this matter: “Although the pursuer states that he will not repeat this conduct, the use of the utility vehicle was repeated during July last year. His behaviour is indicative of his continued desire to keep them open. In my view, given his repeated previous behaviour and insistence on removal of the gates, the defenders have a reasonable apprehension that the pursuer will behave in this manner again.”
For these reasons, Sheriff Drummond granted interdict in favour of the defenders prohibiting the pursuer from damaging or removing the gates. The pursuer’s original claim was refused.
© Scottish Legal News Ltd 2021