Owner of converted stable house in Fife loses appeal against parking servitude variation

Bridget Thomson, who used the property as a holiday home, appealed against a decision of the Lands Tribunal for Scotland granting Lindsay Savage variations of three similar title conditions burdening her property with servitudes of access and parking.

The appeal was heard by the Lord President, Lord Carloway, sitting with Lord Malcolm and Lord Woolman. The appellant was represented by MacColl QC and the respondent by Laura-Anne van der Westhuizen, advocate.

Grassy area

Originally the property consisted of a courtyard with stables on the western and southern sides and a garage towards the eastern boundary. Access was taken from the road to the north. The stables were converted into three houses, with the appellant acquiring title to the middle one in 1992. The seller retained ownership of the courtyard, which the respondent purchased in 2014.

In 2016, the garage was demolished. The respondent wished to erect a house in its place for which she had received planning permission. The appellant had previously taken legal action against the respondent on two occasions to prevent the development on the basis that it interfered with her parking rights over the courtyard.

Following the grant of an interim interdict preventing construction in 2018, the respondent applied to the Lands Tribunal for a variation of the burdens that existed in respect of the three stables properties. The proposed variation would restrict the exercise of access and parking rights by excluding from the burden a strip of the courtyard extending out 8 metres from the eastern boundary. This would allow compliance with a condition of the planning permission, namely that a grassy area to the north of the proposed dwelling be dedicated to it for use as a parking space for two cars.

The appellant contended that she was entitled to park cars on the grassy area by virtue of the servitude and maintained that each of the benefited proprietors was allowed to park at least two cars in the courtyard, including that area. The respondent’s position was that the servitude only allowed one car per proprietor, and did not include the grassy area, and sought to make this clear via the variation.

It was concluded by the Lands Tribunal that the servitude allowed for one car to be parked per proprietor, and that it would be reasonable to vary the burdens. It acknowledged that its view as to the nature and extent of the servitude rights might be erroneous, and that if the variation were granted the appellant could still park two cars if space allowed.

It was submitted for the appellant that the tribunal had erred in holding it had the power to grant the variation. It had purported to vary the condition by excluding land which was not burdened by it, having found that the appellant and the other benefited proprietors did not have any legal right to exercise access or parking rights over the areas purported to be excluded by the order.

Short and crisp answer

The opinion of the court was delivered by Lord Malcolm, who began: “The issues in this appeal are short and crisp. First, was the Lands Tribunal order truly a variation of a title condition, or was it simply replicating the existing provision as to the parties’ rights and obligations? If the latter, it is said that the tribunal had no jurisdiction to make it. Secondly, if it was a variation, did the tribunal err in holding that it was reasonable to make the order?”

He continued: “The equally short and crisp answer to the appeal is that the order is not a replication of the existing condition. The issue between the parties concerned the use by Mrs Thomson of the courtyard for access to and parking in respect of her ownership of one of the properties on the west side. The focus at the tribunal hearing was on parking rights; however, whatever else, access was still a potentially important matter for Mrs Savage’s development plans.”

Explaining the exact effect of the Tribunal’s order, he said: “The tribunal order has restricted the extent of the land subject to the condition. It removes an obstacle which so far has stopped the erection of a house on the east side of the courtyard. It is self-evidently different in material respects from the pre-existing condition. It follows that the first ground of challenge has no merit.”

Turning to whether the order was reasonable, Lord Malcolm said: “As counsel for Mrs Savage observed, context is important. She has planning permission to erect a house broadly speaking on the area previously occupied by the garage. Mrs Thomson has raised legal proceedings designed to stop this, which have enjoyed a degree of success, principally because of uncertainties in the terms of the existing condition concerning parking rights in the courtyard.”

He continued: “The tribunal has expressed a view as to the proper interpretation of the condition in respect of parking, but that is not determinative of the issue, and the tribunal has recognised that it might be wrong. It is an opinion which has no operative or binding effect.”

Lord Malcolm concluded: “Mrs Thomson’s counsel acknowledged that if the appeal succeeds she will maintain her argument before the sheriff at Dundee that her parking rights are unrestricted. If upheld this would stymie the building plans, which have received planning permission. The tribunal’s order, which removes the development area to the east of the courtyard from the scope of the burden, resolves the dispute between the parties. For the reasons given by the tribunal (summarised above), it was an order which it considered to be entirely reasonable and appropriate. We see no reason to disagree.”

For these reasons, the appeal was refused.