Aberdeen landowners’ reclaiming motion against restriction of servitude right refused 

Ian Hawthorne and others raised the reclaiming motion in the action, originally raised by Maren Ruddiman to seek declarator that the access right was restricted to the first two defenders and interdict against all the defenders from using the driveway for means other than access. 

The appeal was heard by the Lord President, Lord Carloway, sitting with Lord Brodie and Lord Malcolm. 

Access over the driveway 

The first defender purchased Bieldside House, located on North Deeside Road in Aberdeen, in 1990. The extent of the property at that time was divided into four areas for the purposes of the case: the area containing the house, the driveway, and two areas of land referred to as Site 1 and Site 2.  

Shortly after the purchase, the house area was sold to the pursuer’s predecessors in title. The first defender, along with his wife the second defender, retained ownership of the remaining ground and built a new house for themselves, Bieldside Lodge, on Site 1. The disposition to the purchasers of Bieldside House contained a reservation allowing them a right of pedestrian and vehicular access over the driveway so far as necessary for access and egress to Site 1. 

The pursuer purchased the house in 2004. Site 2 was conveyed to the remaining defenders, the children of the first and second defenders, in 2005, following several unsuccessful planning applications to develop the site. Further applications were made and refused in 2010, 2017, and 2019. 

The pursuer raised the action in 2010, which was then sisted a number of times for “negotiations.” Interim interdict against the defenders was granted in 2015. The pursuer averred that she was reasonably apprehensive that the defenders were planning to develop Site 2 and use the driveway as an access to it through Site 1. 

The Lord Ordinary held that it was a principle of the law of servitudes that a dominant tenement cannot increase the burden upon a servient tenement per Irvine Knitters v North Ayrshire Co-operative Society (1978). In these circumstances, it could be inferred that the defenders propose to use the driveway for construction purposes, contrary to that principle. 

On appeal, the defenders submitted that there was no excessive use of the servitude if the defenders used the driveway to access Site 1 for a lawful purpose and then moved to Site 2 from there. The use of Site 1 as a car park would not a breach of the Irvine Knitters principle, making the terms of the interdict sought by the pursuer inept. 

Excessive and unlawful 

The opinion of the court was delivered by Lord Carloway. Examining the proposed use of the servitude, he said: “The use of the driveway to access a car park, which was built on Site1, with a view to onward travel to Site 2 is an excessive, and thus unlawful, use of the servitude right of access.” 

He continued, citing the Irvine Knitters judgment: “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. The question is: at the point when the persons or goods enter the driveway, are they destined in bona fide for the dominant tenement (Site1) or a non-dominant tenement (eg Site2)? If it is the latter, the use of the servitude is unlawful because it increases the burden on the servient tenement.” 

On the interdict sought by the pursuer, he said: “The interdict seeks to protect the pursuer’s property in so far as the defenders may attempt to use the driveway for access to Site2. The meaning of the interdict is clear. It would prohibit the defenders’ apparent planned use. If, after the proof before answer, the Lord Ordinary considered that a more limited declarator or interdict were appropriate, the precise terms of the decree could be adjusted by the court.” 

He concluded: “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) and taking steps to remedy the problem which was identified in the previous planning process (ie the threat to the boundary wall). 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.” 

For these reasons, the defenders’ reclaiming motion was refused. In the absence of a motion for summary decree, the case proceeded to proof in respect of the motion for interdict.