Sheriff Appeal Court upholds decision allowing servitude car parking right off narrow Carnoustie street

Charles Davidson, one of two defenders along with Angela Milne in the original action raised by Bradley Johnston, argued that the servitude of access granted over his property did not extend to the right to park a vehicle.

The appeal was heard by Sheriff Principal Duncan Murray, sitting with Appeal Sheriffs William Holligan and Sean Murphy.

Right of access in common

The defenders were the heritable proprietors of a house at 14 Fox Street, Carnoustie. The street was described as a narrow single carriageway that terminates in a dead-end underpass below a railway line with double yellow lines on both sides of the carriageway. Since at least 1997 it had not been possible to park a vehicle on the carriageway without blocking the road.

The pursuer had been the heritable proprietor of 16 Fox Street, located next to the defenders’ property, since 2004. Part of the path up to the pursuer’s property was owned by the defenders, access to which was necessary to access the property.

The current access arrangements to the properties were created in 1997 when both were purchased and renovated by two local property developers, David and George Soutar. Following the sale of 16 Fox Street, a disposition was registered giving its proprietors “a heritable and irredeemable servitude right of access in common” over part of the subjects comprising 14 Fox Street. There was sufficient space for four vehicles in the area.

The pursuer raised an action in the sheriff court after the defenders planted a tree and erected a fence and bollards on the area of property covered by the servitude. He sought declarator that he had a right of vehicular access over the area and a right to park on it, which was granted by the sheriff. The sheriff further ordained that the tree, fence, and bollards be removed so that the pursuer could exercise these rights.

On appeal, it was submitted for the defenders that, while there was authority for the proposition that a right of parking could be established as an ancillary right to one of vehicular access, the case of Moncrieff v Jamieson (2008) ought to be distinguished. That case related to a rural area in which vehicular access was expressly established by the terms of the servitude and thus was manifestly different to the present action. Further, there could not be a right of vehicular access where it was not possible to drive a vehicle onto the dominant tenement.

In response, the pursuer submitted that the defenders sought to draw too fine a distinction between analysing the rights necessary to enjoy a servitude and any ancillary rights associated with that servitude. The sheriff was not to be criticised for describing the situation following the Soutars’ acquisition of both properties as a fresh start, and it was the evidence of David Soutar that it was their intention that both properties should have parking space to be more attractive to potential buyers.

At large for reconsideration

The opinion of the court was delivered by Sheriff Principal Murray. Noting that both parties accepted that the terms of the grant were ambiguous, he began: “We find that the sheriff has fallen into error in two fundamental respects. The correct approach in this case was, as proposed by the parties to the sheriff at the proof before answer, a two stage process. Firstly, to determine the nature of the right conferred by the express grant; and having done so, to determine what ancillary rights were necessary for the comfortable enjoyment of the servitude.”

He continued: “As a result of these conclusions, as both parties recognised, the matter is at large for our reconsideration on the facts as found. The first step is to ascertain the correct interpretation of the express grant. That must be done having regard to the terms of the grant and if, as is accepted here, those terms are ambiguous, regard may also be had to the surrounding circumstances.”

Considering the language of the grant directly, Sheriff Principal Murray said: “The use of ‘in common’ supports a finding that that the intention was to give some equivalent right to use the disputed area which the sheriff found had sufficient space to park at least four cars. Importantly, the evidence of Mr Soutar was that it was intended that the proprietors of number 16 had a right to park on the disputed area.”

He continued: “The sheriff accepted his evidence that off street parking would make the redeveloped properties more desirable. That supports the creation a right of vehicular access over the disputed area.”

Addressing the defenders’ argument regarding the impossibility of vehicular access, he said: “We accept that even where the last part of the access has to be pedestrian there can none the less be a right of vehicular access to reach that point and beyond. Indeed the argument may be turned to suggest that the right being granted in part over a larger area than would be necessary to allow pedestrian access is an adminicle of evidence which supports it being for vehicular access.”

Sheriff Principal Murray concluded: “The servitude is one of vehicular access. Can that particular right, in that particular location, comfortably be enjoyed without the right to park? When one considers all of the circumstances of the subjects set out at various places in the sheriff’s judgment we are of the view that the answer is no.”

For these reasons, the appeal was refused, and the interlocutor of the sheriff upheld.