[2006] CSOH 196



in the cause







Act: Smith; Brodies LLP

Alt: Robertson; Drummond Miller, WS for Anderson Bain, Aberdeen

19 December 2006


[1] The pursuer is the Aberdeen City Council. It is the successor in title to the Aberdeen District Council. I shall refer to them collectively as "the council". The council is the heritable proprietor of subjects in Aberdeen ("the site") to the south west of the junction of Shiprow and Shore Brae. The defender is the owner and occupier of warehouse premises adjoining the site. The main issue between the parties in this action is whether the defender has a servitude right of access over the site.

The Site
[2] The site is shown on a plan annexed to a lease dated 16 and 29 December 1980 between the council and Robert Duthie & Sons Limited ("Duthies"). It covers an area of about 455 square metres and is presently used by members of the public for parking their cars. The plan is aligned on an approximately north-west/south-east axis, the top of the plan being north-west. The site forms part of a tongue of land emerging from the left of the plan, bounded to the top by Shiprow, to the bottom by Trinity Quay and to the right by Shore Brae. To the left (south-west) of the site, still on this tongue of land, are a number of buildings including "The Moorings" public house, a tattoo bar and a garage building. To the left of these buildings is a large six-floor brick built building which extends across the whole width of the tongue of land, from Shiprow to Trinity Quay. The bottom three floors of this building comprise a warehouse which interconnects with the garage building. The buildings generally are known as the Trinity Buildings. The land occupied by the Trinity Buildings and the site slopes down from Shiprow to Trinity Quay to the extent that the bottom floor of the warehouse, at ground level on Trinity Quay is not seen from Shiprow, while the floor above that is seen from Shiprow as though it were a semi-basement. A building on the lower part of the site was demolished in 1974.

Background - Duthies' use of the site
[3] There was little controversy as to the background to the present dispute. Much of it is set out in a very full and helpful Joint Minute, tendered during the proof, and in various documents lodged in process, the authenticity of which was the subject of agreement in the Joint Minute. I heard evidence about the background facts from two witnesses for the pursuer and one for the defender. The pursuer called a Mr Barlow, who has recently retired but was employed by the council since 1992 in the management of its assets. Although he could not give first hand evidence on many of the relevant events, apart from a rent review in 1994, he was familiar with the file and was able to put the correspondence and minutes into some kind of context. It also called a Mr Beck, a chartered surveyor, who has been involved in the management of the council's operational and investment portfolios since 1990. His responsibilities include responsibility for the site. He also spoke to the file of documents with which he had had to make himself familiar when he was appointed to his post; and he also was personally involved in rent reviews after 1990. The defender called Mr Alan Duthie, who was managing director of Duthies from 1975 and had been involved in the company in other capacities since about 1962. He was able to speak with first hand knowledge of the relevant background, though it is fair to say that his detailed recollection of events occurring many years before was understandably hazy. The defender himself also gave evidence as to his acquisition of the premises from Duthies and his subsequent use of the site. In addition a Ms Bhatia and Mr McKimmie spoke to their knowledge of recent use of the site.

[4] From about 1963 the warehouse and garage building were owned and occupied by Duthies and used by them for a wholesale grocery and catering supply business. At that time there was no direct access of any sort to the Trinity Buildings from the site. Nonetheless, between 1965 and 1968 Duthies took an assignation of a lease of part of the site and used it as a staff car park. When the lease came to an end, the council allowed the Douglas Hotel to use the site as a car park for guests.

[5] There were at that time two means of vehicular access to the warehouse: one by an entrance directly into the warehouse from Trinity Quay; and the other by an entrance from Shiprow into the garage building and thence into the warehouse. The Shiprow entrance was not high enough for longer or high-sided vehicles, and therefore became less easy as vehicles became larger over the years. These larger vehicles had to park in Shiprow to unload through that entrance; and since Shiprow is relatively narrow, that caused blockages to traffic there. In about 1975 a dual carriageway was built along Trinity Quay, which substantially restricted vehicular access to the warehouse from there or, at any rate, made such access unacceptable from the point of view of the council.

[6] In 1974 and 1975 consideration was given within the council to the possibility of negotiating access through the site for those who, up until then, had had access to their premises from Trinity Quay. This would have the advantage of taking heavy traffic away from the new dual carriageway. Discussions took place between the council and, variously, both Duthies and the proprietors of The Moorings. In February 1976, Duthies applied for planning permission and building warrant for alterations to their premises to enable access to be taken through the site. Drawing D/21 sent to the pursuer on 1 March 1976 shows the proposed alterations. The roof of the garage building was to be raised; and its gable end, which abutted the site, was to be opened up, with large sliding doors opening onto the site. The new doors and the heightened roof would allow vehicles of all sizes, taking access across the site, to reverse into the garage building and the warehouse to load and unload. Steel supports were needed for raising the roof. The drawing shows that one of the columns for this structure was to be positioned in the then existing opening from the garage building into Shiprow, so that, when the work had been carried out, the Shiprow access would be closed even to small vehicles.

[7] A letter dated 8 March 1976 from the Department of City Architect to the Estates Officer at the Department of Law and Administration shows clearly that the council recognised that the work involved "the closing up of an existing door in the warehouse giving access to Shiprow, and the formation of a new door with access across [the site] to Shore Brae". Consideration was given, at this time, to the idea of Duthies and The Moorings jointly taking a lease of the site for purposes of access to their respective premises. There were discussions between different departments within the council and between those departments and Duthies. The council was concerned that the plans should not be approved unless a right of access to the proposed new doors - clearly meaning access across the site - was first secured by Duthies. At one point (as shown by an internal letter from the Director of Planning and Building Control dated 2 July 1976) the council had a concern that "the present proposals are unsupported by any assurance regarding [Duthies'] intention to discontinue vehicle goods handling at the pend on the Trinity Quay frontage ...". Ultimately, according to Mr Duthie's evidence which I accept, there was a meeting between Duthies and several officers of the town council at which it was agreed in principle that Duthies would construct a new entrance facing Shore Brae and would get access to this new entrance across the site. It is not clear precisely when this meeting occurred, but I am satisfied that it took place at latest before or at the beginning of negotiations for the lease. It may have been considerably earlier.

[8] Matters dragged on intermittently over the next two years. On 9 May 1978 the council's Director of Planning and Building Control sought instructions from the Property and Development Committee. His Memorandum dated 9 May 1978 summarises the position as he then perceived it to be. I set out the relevant parts of it below:

"1.1 For some considerable time Mr A Duthie, Director, Robert Duthie and Sons Ltd., "Trinity House", Trinity Quay, has been seeking an improved vehicular access to the firm's premises.

1.2 The two present vehicular accesses are located (a) on Trinity Quay - serving the lower levels of the premises - and (b) on Shiprow - serving the upper levels - and it is proposed to replace the latter access with a new access from Shore Brae [i.e. across the site].

1.3 The existing arrangements are not satisfactory in that (a) the Trinity Quay access requires a reversing manoeuvre by all vehicles to that part of the premises ... or kerb-side goods handling; and (b) the Shiprow access, on the south side of the street, at its narrowest point, is suitable for small vehicles only, with large or articulated vehicles having insufficient space for manoeuvre into the premises and consequently during fairly frequent periods, on-street goods handling virtually closes the street to other vehicular traffic.

1.4 The alterations now proposed are (a) the building-up of the present doorway on the side of the Shiprow premises ...; (b) the formation of a new doorway in the gable of that building with frontage to Shore Brae; and (c) the leasing from the Council of sufficient land required to provide (i) a suitable vehicular access from Shore Brae to the reconstructed premises - the land so required being a part of the vacant area lying on the west side of the Shore Brae between Shiprow and Trinity Quay, which is partly laid out as car-park meantime, and partly derelict; and (ii) a limited amount of staff car-parking space.

1.5 While implementation of the above proposals would permit some re-arrangement of stock storage/goods handling within the premises, which would in turn enable more vehicles to use the Shore Brae access and eliminate the present problem on Shiprow, Mr Duthie has indicated that it would still be necessary to retain in use the Trinity Quay access; although this use would be reduced in volume and could perhaps be restricted to small delivery vehicles only.

1.6 Mr Duthie was requested, therefore, to consider a more extensive internal re-arrangement of the premises including the provision of a hoist or other such facility, with a view to the desirable closure of the Trinity Quay access and the handling of all goods being confined to the proposed Shore Brae access, but he now advises that this is not a practical suggestion."

The Committee met to consider the matters raised in this Memorandum on 28 June 1978. Noting inter alia that the suggestion of a lease over the site was "for the purposes of forming a new access to [Duthies'] adjoining premises and providing car parking", the Committee resolved to recommend that the existing tenancy of the site be terminated, that the application to lease be approved in principle and that it be remitted to the pursuer's Director of Law and Administration to endeavour to negotiate terms of the lease.

[9] The public house ceased to be interested in the proposal sometime in the second half of 1978. Negotiations thereafter continued with Duthies alone. The Estates Officer wrote to Duthies on 18 October 1978 proposing a five year lease, with a condition that the site was to be used "for the parking of vehicles and for no other purpose whatsoever". Duthies' response in their letter of 25 October was that the proposed lease was acceptable but in view of the money which they would require to spend to enable the site to be used for parking and to comply with the pursuer's requirements to build a boundary wall, put in an entrance barrier, etc, a period of twenty five years would be more reasonable. This was agreed (with rent reviews every five years) in November 1978. This proposed lease was put before the Property and Development Committee at their meeting on 15 January 1979. They recommended approval of a twenty five year lease

"on terms and conditions which shall provide inter alia that the ground will be used for the parking of vehicles and for no other purpose".

In August 1979 a lease was finally agreed in those terms with entry to be given on 15 November 1979.

[10] The lease was lodged in process. It was eventually signed on 16 and 29 December 1980, notwithstanding that entry was taken on the agreed date of 15 November 1979. Clause THIRD of the Lease provides:

"The subjects shall be used, during the currency of the Lease, solely for the parking of vehicles by the Tenants, their employees and customers and other parties authorised by the Tenants; and it is hereby declared that the subjects shall be used for no other purpose unless with the prior approval in writing of the Council."

Nothing in the lease touched upon the question of access across the site to the garage building and warehouse.

[11] The alteration to the garage building to raise the roof and create a new vehicular access opening onto the site was carried out in or about 1981. The work was carried out substantially in accordance with the Drawing to which I have referred, though there may have been a slight alteration to the design and precise position of the steel supports. Thereafter Duthies took access across the site from Shore Brae to the warehouse and garage building on a regular and open basis. In his evidence for the pursuer, Mr Barlow sought to suggest that Duthies had not used the site contrary to the terms of clause THIRD "in a material way". He described the use made of the site as being parking of lorries and loading and unloading them on the site. When asked whether Duthies' lorries had since 1981 driven across the site and into the garage building through the new doors, he said that he had never seen that happening, nor had he even seen the doors open. Since, during the course of his evidence, he had not previously appeared to feel constrained by his lack of first hand knowledge of the facts to which he spoke, I found his reticence on this point surprising. However, at a later stage in his evidence, Mr Barlow said that his understanding was that Duthies were in fact driving vehicles across the site, through the new doors and into the warehouse. Mr Duthie confirmed that this was the case and that the council must have been aware of it. I accept this evidence. As the council knew, the heightening of the garage building, and the creation of an opening and large sliding doors in the gable end of it, could have been for no other purpose. Mr Beck accepted this in his evidence.

[12] The lease provided for rent reviews every five years. The first was in 1984. In the correspondence between Duthies and the pursuer, Duthies made the point that they had incurred significant expenditure in respect of the site, not only by re-surfacing it and erecting railings around it, but also in raising the roof of the building, making a new entrance and fitting new doors. This expenditure, they argued, should be taken into account in fixing the rent. The correspondence is of some interest in understanding the position of the parties. Duthies' letter of 8 August was in these terms:

"It is unfortunate that my main argument, namely access to our building, has been ignored.

Some considerable time ago we wrote to the Roads Department as we were concerned about access to our building via Trinity Quay once the dual carriageway was built. Despite several letters we received no reply and received no advance warning of the construction of the dual carriageway. This posed considerable problems as our access via Trinity Quay was considerably curtailed.

At this time the Department of Law and Administration were concerned as they felt we might be able to press a claim for compensation for reduction of access. This was not our intention - we wished to gain access to our building by some means.

At this stage the Roads Department and Police were also concerned as we were, quite legally, having to unload vehicles in the Shiprow, which effectively closed this street to traffic.

In order to resolve these problems it was finally agreed that we would be allowed access to our building through [the site]. I must stress that the important factor was access to our building NOT car parking. Indeed, the owner of 'The Moorings' was originally to rent the lower part of the site, the 'The Moorings' changed hands shortly afterwards.

In order that high vehicles could gain access to our building and thereby doing away with the necessity of the parking in the Shiprow, it was necessary for us to raise the roof of our garage, make a new entrance and fit new doors. This naturally was an expensive alteration.

We also had to convert what was a weed infested site by erecting railings, re-surfacing and so on. This, also, involved considerable expense. ...

To sum up - We have been involved in substantial expenditure to resolve problems not of our making, affecting the Police, Roads Department and the Department of Law and Administration. It seems to me most unfair that we should now be saddled with a large increase in rent."

The council's Director of Estates responded as follows:

"While I appreciate your stating that your (sic) mainly concerned with access to your building and not car parking, I would point out that the ground in question is clearly being used as a car park and indeed the lease which you signed for the ground clearly states in Clause Third that the ground is to be used for car parking facilities and for no other purpose. Indeed, if car parking is not your main concern, you need not have taken up the lease for the whole area of ground.

However, as you do hold a lease for this whole area of ground for car parking purposes, I am obliged to charge a rental in line with the full market value of the site. ..."

He then indicated that the rent that he was proposing was slightly below full market value in recognition of the expenditure Duthies had incurred on resurfacing and the erection of railings (though not, it is to be noted, their expenditure on the work in raising the roof of the garage building and creating an access into it from the site). In response to that, Duthies' emphasised the amount spent on the alterations to the garage building, which, they said,

"cost considerably more than the alterations to the car park and surely proves the point that the value of [the site] to us is in improving our access".

The Director of Estates in his reply (on 25 September 1984) said that he did

"appreciate the basis of your argument as regards your access requirement and your attempt to alleviate traffic congestion in the area. However, although it appears that the question of traffic congestion prompted your application to lease the ground, negotiations were based solely on the condition that the ground was to be used for car parking purposes only."

[13] There were further rent reviews at five yearly intervals thereafter. At the 1989 rent review Duthies re-iterated the points they had made in 1984. I did not have evidence of the pursuer's response but I can safely assume that it was much the same. I suspect that similar exchanges took place at later reviews, but I do not have the correspondence relating to these reviews.

The defender's use of the site
[14] Many years later, Duthies decided to move from the Trinity Buildings. In July 2002 they offered to purchase the council's interest in the site or to surrender the unexpired portion of the lease. In fact they did neither. Instead they sold the warehouse and garage building to the defender and, with effect from 30 May 2003, assigned the lease of the site to the defender with the council's consent. The defender lives in Abu Dhabi in the United Arab Emirates. He carries on a property management business in Aberdeen and acquired the warehouse and garage building from Duthies with a view to letting out space for relatively short periods to tradesmen, retailers, wholesalers and others needing temporary storage facilities. Since he has occupied the premises, vehicular access has continued on a frequent and regular basis across the subjects and into the warehouse. This was challenged faintly by the pursuers but I accept the defender's evidence on this; and I accept also the evidence to similar effect given by Ms Bhatia and Mr McKimmie, both of whom used and continue to use the warehouse for storage in connection with their very different businesses.

[15] When he took an assignation of the lease of the site, the defender erected a "pay and display" machine and permitted members of the public to park upon purchase of a ticket from the machine. I was told by the defender, and I accept, that the lower part of the site was used, without payment, by residents or persons working elsewhere in the buildings. The upper part of the site has room for about six cars to park. Cars tended to be left there for the day, rather than there being a large number of cars passing through each day, each parking for a short period.

[16] The lease terminated on 28 November 2004. Just before it expired, the pursuer wrote to the defender's agents asking if the defender wished to renew the tenancy of the car park area or, if not, whether he intended to stop taking access. The agents replied on behalf of the defender saying that they were taking instructions but they did "not think he has any further interest in the car park beyond the prescribed servitude right". The defender has not renewed the lease. On 22 June 2004 the pursuer served on the defender a Notice of Removal under s.37 of the Sheriff Courts (Scotland) Act 1907 requiring him to remove from the site on 28 November 2004. This Notice was clearly referable to the expiry of the lease. The present action was brought in August or September 2005. Pending the outcome of this action the pursuer has not sought to stop him taking access across the site. There are certain disputed matters surrounding the use of the site after termination of the lease, but I shall return to these at a later stage in this Opinion.

The pursuer's case
[17] The pursuer's first two Conclusions were (1) "for declarator that the defender has no servitude right of access" across the site and (2) "for declarator that the defender's lease over the sight was validly terminated at Martinmas 2004, and that the defender had thereafter and has no right, title or interest to be on [the site], and that the pursuer is entitled to enter upon possession of [the site], and to dispone thereof at its pleasure." Mr Smith, who appeared for the pursuer, put forward five propositions in support of this part of his case.

(i) First, he submitted that the burden of proof rested with the defender. It was for him to prove the existence of the servitude right, not for the pursuer to disprove it.

(ii) Second, under reference to Cusine and Paisley, Servitude and Rights of Way, at para.10.20, and to Hamilton v McIntosh Donald Ltd. 1994 SC 304 at 322D, he submitted that to establish a servitude right by positive prescription, the defender's use must not only be open and peaceable and without interruption - which was not in dispute in this case - but it must also be unequivocally referable to the right claimed rather to some other factor such as lease, contract or licence.

(iii) Third, he submitted that the use relied upon must be taken "as of right", and not simply allowed by tolerance or contract or licence. He referred me to Cusine and Paisley (op. cit.) at paras 10.15 and 10.19, to Nationwide Building Society v Walter D Allan Ltd. (unreported 4 August 2004, Lady Smith) at paras.[30] and [31] and to Grierson v The School Board of Sandsting and Aithsting (1882) 9 R 437.

(iv) Fourth, he submitted that the use in this case was not unequivocally referable to the claimed servitude right but was attributable either to the lease or to an assurance given to Mr Duthie. As to the former, it was arguable, he submitted, that, notwithstanding the terms of Clause THIRD thereof, the incidental rights conferred by the lease included some vehicular access to the warehouse through the site. As to the latter, he submitted that Duthies took access across the site on the back of an assurance given by the council in the course of negotiations for the lease which was superseded by the conclusion of the lease with Duthies. Subject to any question of personal bar, which might have operated in favour of Duthies, the council could at any time have refused to permit further access across the site. The pursuer was entitled now to refuse access to the defender.

(v) Fifth, he submitted that the possession in this case was not taken or maintained as of right. There was no clear assertion by Duthies that they were taking access as of right. They thought they were enjoying the right of access by virtue of having entered into the lease. This was the position taken by Mr Duthie in the rent review in 1984 and there was no indication that he changed his position thereafter. There was no evidence that, when he sold the warehouse and garage building to the defender, he told the defender that there was a servitude right of access over the site. The defender was shown the large doors and simply assumed that the access was across the site. The defender then took an assignation of the lease of the site. It may be that Duthies thought the assignation of the lease to the defender was necessary to give the defender a right of access across the site. An alternative view was that Duthies were allowed access across the site in derogation of the restriction in Clause THIRD of the lease. Such a derogation would stand or fall with the lease.

In those circumstances Mr Smith argued that the pursuer's case that the defender had no servitude right of access was made out and declarator should be granted in terms of the first Conclusion.

The defender's case
[18] The defender counterclaimed for declarator that he did have a servitude right over the subjects. For the defender, Mr Robertson accepted that the onus of proof was on his client. He pointed out that the requisite possession (or use) began in 1981, when the work on creating the opening in the gable end of the garage building was completed, and continued for at least twenty years until Duthies continued their business until 2002. Since then the defender had continued using the access across the site. He submitted that the use was open and peaceable and for over twenty years the council had done nothing to stop it. He accepted that the use had to be "as of right", but this meant no more than that the use was not attributable to some other basis such as permission or tolerance or licence. The suggestion that the use was attributable to the lease was untenable standing the clear terms of Clause THIRD. The lease did not allow the site to be used for any access at all to or from the garage building; but even if some access incidental to parking were allowed, the frequency and regularity of the access in fact exercised by Duthies fell well outside the ambit of any such incidental right. Turning to the question of tolerance, Mr Robertson submitted that tolerance was to be contrasted with a legal right. In this case, Duthies acquired a legal right to exercise the right of access across the site. That right arose by implication from the whole circumstances before the lease was negotiated. It was not necessary to look for a precisely concluded agreement - the whole point of prescription was to perfect an inchoate right. A servitude can be created by an oral agreement followed by use. He referred to M'Gregor v The Crieff Co-Operative Society 1915 SC (HL) 93, 103-4 for the meaning to be given to "as of right". The test of what was being asserted, and the response to it, was objective. He submitted that use which could not be prevented, or which could not be prevented save on notice, because of personal bar was use "as of right" capable of being made permanent by prescription. He contrasted this with "tolerance" (as the expression is used in this field of the law), where toleration of the possession or use is capable of being withdrawn at any time.

[19] Mr Robertson submitted that the council gave Duthies an assurance that they could have access across the site to their warehouse. They did so not only because it suited Duthies' business but more particularly to solve the council's own road and traffic problems. The assurance was not intended as a short term or temporary arrangement. The arrangements of which the assurance was a part involved Duthies in making extensive alterations to their building in opening up an access from the site and closing the Shiprow access, against the background of they having lost their access off Trinity Quay. In those circumstances, it could not reasonably be inferred that the council had in mind the grant of a right of access terminable at will. Mr Duthie was clear that he thought he was entitled to take access. Initially he appeared not to have taken on board the terms of Clause THIRD, and he may have thought that the right of access was in his lease, but this did not matter. His private understanding was irrelevant. The property might have changed hands on many occasions, and the subjective understanding of only one out of a number of persons making continued use of an access route across the site could not affect the question. If he was wrong on this point, the fact was that in the rent review of 1984 the council had made it clear that access was not conferred by the lease. This was sufficient to disabuse Mr Duthie of any idea that the right of access was founded upon the lease. More than twenty years had passed since then. He urged me to disregard the brief interruption of use of the right of access in the transitional period between Duthies ceasing business and the defender starting up. Any change in the business was bound to lead to a short interruption, but this will not necessarily interrupt prescription. It was a question of fact in the whole circumstances whether there had been a continuous period of twenty years use sufficient to found a right by prescription. He referred me in this connection to Cusine and Paisley (op. cit.) at para.10.13. There was, in any case, no evidence that all use had stopped during this transitional period. Further, Mr Robertson invited me to reject the notion that the assurances about access could be seen as a derogation from the lease, so that they fell when the lease came to an end. The assurances had been given before the lease, not by way of derogation from its terms.

Further submissions
[20] At the end of parties' submissions, I asked for some further assistance on the question whether a right of servitude requires a grant. In para.[35] of her Opinion in Nationwide Building Society v Walter D Allan Ltd. Lady Smith said, founding upon what was said by Lord Young in Grierson: "Servitudes emanate from grants. They are given, not taken." Mr Robertson indicated that he did not accept this as correct. In Scots law, he said, a public right of way made good by prescription was not founded upon the fiction of a presumed grant: Mann v Brodie (1885) 12 R (HL) 52, per Lord Watson at p.57. There was no reason why Lord Watson's comments should not apply to servitudes: Cusine and Paisley (op. cit.) at para.10.13. He submitted that in considering the acquisition of a prescriptive right - such as an a non domino title - there is no requirement that a party has acted in good faith. This is inconsistent with any requirement of a grant, even a fictional grant. Mr Smith responded by saying that the very concept of an a non domino title showed the necessity for a grant of some sort. Understandably, since neither party saw this issue as central to their case, counsel had not come fully prepared to argue the point. After the conclusion of the proof, counsel helpfully sent me a Joint Note of Authorities on the point, with photocopies of the cases referred to. The authorities referred to, in addition to those mentioned in this paragraph, were: Gordon, Scottish Land Law, 2nd ed at para.24-42 and n.93; Erskine, Institutes II.9.3; Stair, Institutions II.12.9, II.12.11; Macnab v Munro Ferguson (1890) 17 R 397; and Carstairs v Spence 1924 SC 380 per Lord Blackburn at 394-5.

[21] The defender's case is founded upon s.3(2) of the Prescription and Limitation (Scotland) Act 1973 which provides that

"If a positive servitude over land has been possessed for a continuous period of twenty years openly, peaceably and without judicial interruption, then, as from the expiration of that period, the existence of the servitude as so possessed shall be exempt from challenge."

There is no dispute that access was taken across the site into the garage building from 1981, when the work of putting large sliding doors into the gable end of the garage building adjoining the site was completed, thereby closing off access to the garage building from Shiprow. Access continued to be taken across the site at least until Duthies stopped carrying on business from the site in 2002. That is a period in excess of twenty years.

[22] There is an issue, with which I shall deal later in this Opinion, as to whether the prescriptive period should start to run from the rent review of August/September 1984; and whether the use of the access continued for an uninterrupted period of twenty years after that time. Should this be relevant, I should say that, in my opinion, it did continue for an uninterrupted period of twenty years after September 1984. It is not clear precisely when the defender acquired the premises from Duthies but I infer that it was probably at about the same time as he took an assignation of the lease of the site at the end of May 2003. The defender's evidence, which I accept, was that, since acquiring the premises from Duthies, he and others using the warehouse for storage have continued to take vehicular access across the site and into the garage building. There is a gap of about a year - from mid-2002 to mid-2003 - between the time Duthies stopped carrying on business at the site and the time when the defender moved in. There was no evidence as to what, if any, traffic accessed the warehouse across the site during that period. There is likely to have been some access taken during this period by persons interested in purchasing Duthies' premises, but I assume there would not have been regular access by lorries or other delivery vehicles. A brief interruption of the otherwise regular exercise of the access does not necessarily prevent the whole period up to the beginning of these proceedings in about August/September 2005 counting as a single continuous period of use for the purposes of prescription. It is a question of fact whether or not it has this effect: see Cusine & Paisley at p.342. In the present case I consider that it does not. Any change of ownership of the warehouse has the potential to interrupt the taking of access across the site. The council was aware of the proposed sale by Duthies. It knew that the site provided the only vehicular access - for large vehicles at least - to the warehouse and that any purchaser of the warehouse would require to use such access. It must, therefore, have anticipated that the use of the site for access to the warehouse would resume as soon as the new owner of the warehouse took possession. It could be said that, in offering the premises for sale with only the one means of access for large vehicles, Duthies were continuing to exercise their right of access across the site during the whole period up to the conclusion of the sale to the defender. In the whole circumstances, I consider that the brief interruption should be seen as no more than an inevitable incident of the change of ownership and not such as to interrupt the running of the prescriptive period.

[23] There was no dispute that the access was taken openly and peaceably. But Mr Smith argued that the use of the site for access was not unequivocally referable to the right claimed; and, further, that the access across the site was not taken "as of right". In this case, and I suspect in many cases, these points merge into one. They require an analysis of the circumstances in which Duthies came to take access across the site and persisted in it thereafter.

[24] Putting the matter at its simplest, the evidence shows that Duthies originally had two entrances into the warehouse, one from Trinity Quay and one from Shiprow (through the garage building). The development of the dual carriageway along Trinity Quay meant that the use of the entrance there became restricted, particularly for large vehicles. The use of the Shiprow entrance gave rise to problems both for Duthies and the council. The difficulty for Duthies was that the entrance was not big enough to take large vehicles. I do not know whether this difficulty could have been overcome by raising the roof of the garage building and increasing the height of the doors opening onto Shiprow; this was not explored in evidence before me. The difficulty for the council was that the process of loading and unloading lorries at the Shiprow entrance effectively blocked the road for up to three quarters of an hour at a time. Lurking in the background seems to have been a concern on the part of the council as to their potential legal liability if, in one way or another, they stopped or restricted Duthies' access to the warehouse. The solution was to open up a new means of access through the site. It is not clear from the evidence which party was the first to raise this possibility, but the raising of it seems to have been triggered by the proposal to turn Trinity Quay into a dual carriageway. By the time of Duthies' application for planning permission and building warrant in February 1976, the work required to create such a right of access had been worked out in detail (and, indeed, there were only minor alterations to the plans thereafter). It may well have been at about this time that the agreement was reached in principle (at the meeting to which I have referred) that Duthies could take access across the site. I cannot see why they would have progressed the matter so far without such agreement. Clearly they would not have carried out the considerable work in raising the roof of the garage building and installing the large double doors in the gable end of that building unless they had received an assurance that they could take access across the site. It matters not that the assurance or agreement in principle was not reduced to writing. It would have been sufficient to entitle Duthies to succeed in a plea of personal bar in answer to any attempt by the council to prevent them using the access across the site. To that extent, it is clear that the access taken by Duthies was taken "as of right" and not simply by tolerance on the part of the council. I would go further. If it were necessary to consider whether the servitude had been exercised for a period of twenty years from 1984, I would hold that the defender also used the access across the site "as of right". Although the defender was not directly a party to the assurance given by the council, in permitting Duthies to incur expense in opening up the new entrance gates on the strength of the assurance that they could have access across the site, the council must have known that that the council's assurance would be passed on, albeit tacitly, to anyone interested in purchasing the warehouse premises from Duthies. Mr Smith pointed to the fact that there was no evidence of Mr Duthie having told the defender in so many words that there was a right of access across the site. This, to my mind, is wholly beside the point. The position of the new entrance to the warehouse, and the absence of any other useful entrance, itself conveys a representation to any purchaser that there is a right of access across the site; and, since the new entrance was, as the council knew, opened up on this basis, and since the former entrances were, to all intents and purposes, removed by the council, that implied representation can be taken as having come from, or having been made with the acquiescence of, the council. Had the point arisen before this litigation started, I consider that the defender too would have been entitled successfully to plead personal bar in answer to any attempt by the council to stop him taking access across the site. To that extent, he also used the access "as of right" and not by tolerance.

[25] The pursuer's strongest argument stems from the fact of the lease entered into between the council and Duthies in 1979. Despite the restrictive terms of clause THIRD thereof, Mr Smith argued that the council and Duthies should be regarded as operating under or by reference to the lease as far as access to the warehouse was concerned. He put the argument in two different ways. His first argument was that the lease gave Duthies rights of access across the site incidental to the rights of parking conveyed by the lease. The line between exercising such an incidental right and using the site for unrestricted access was not easy to draw. The council could be forgiven for not observing that Duthies' use of the site for access over the whole period exceeded that which the lease allowed them. His second argument was that the council's agreement that Duthies could take access across the site could be viewed as a derogation from the terms of clause THIRD of the lease or, I suppose, a waiver of the right to rely on the use restriction in that clause. Any such derogation or waiver was effective only so long as the lease continued. The right, if any, created thereby was, at its longest, co-terminus with the lease. When the lease was not renewed in November 2004, any permission to use the site for access contrary to the terms of clause THIRD came to an end. The arguments are alternative to each other, since the latter involves the council knowing that access was being taken contrary to the terms of clause THIRD whilst the former assumes that the council had no such knowledge.

[26] I consider that both arguments must fail. As to the first, it cannot seriously be argued that the council did not appreciate the extent of the access taken by Duthies. It is no doubt true that representatives of the council were not on site on a regular basis to observe lorries reversing across the site into the large doors of the garage building. But they did not need to be. They knew that the only purpose of Duthies having carried out the work to the garage building was to enable lorries to cross the site to enter the building. They also knew that the former entrances to the warehouse were no longer possible or practicable. They must therefore have known that the site provided the only access to the warehouse for large vehicles. Anyhow they must have been aware that the access across the site was being used. So I reject the first argument.

[27] I also reject the second argument. I am satisfied on the evidence that the assurances given to Duthies about access were given before the lease was negotiated. Although the building work was not completed until 1981, I am satisfied that Duthies had committed themselves to the new access arrangements well before that. Accordingly, simply in terms of timing, I find that permission was given to use the site for purposes of access well before the lease was entered into. That permission cannot sensibly be viewed as a derogation from a restriction in a lease which did not then exist. But the matter does not stop there. Not only does clause THIRD of the lease make it clear that the lease is "solely for the parking of vehicles", but this was insisted upon for some time before the lease was finalised, both at Committee meetings within the council and in correspondence with Duthies. After the lease was entered into, in the rent review discussions in 1984 the council maintained its insistence that in terms of the lease the site was to be used "for car parking facilities and for no other purpose". All this is inconsistent with the idea that the council were allowing Duthies to take access across the site in terms of the lease and as a derogation from the restrictions in clause THIRD.

[28] There is one matter in particular which shows clearly, to my mind, that from the start both parties regarded the question of access and the question of the lease as distinct. When the detailed terms of the lease were first put forward by the council in their letter of 18 October 1978, they proposed a period of five years only. It is difficult to conceive that Duthies would have incurred that expenditure and blocked up the Shiprow access if they were only to be given the new access route for five years. Given that the previous means of access to the warehouse from Trinity Quay and Shiprow were effectively closed to the sort of vehicles required to load and unload, any finite term for access arrangements would threaten the long term use of the warehouse; but a period of access as short as five years would be wholly inadequate in light of the expenditure on raising the roof and opening up the gable end on which, as both parties knew, Duthies were to embark. Yet when Duthies responded to the council to say that five years was too short, and proposing twenty five years, they justified this not by reference to the expenditure on the garage building to enable access to be taken but by reference to the expenditure needed to make the site suitable for a car park. Such an exchange is inconsistent with either party at that time thinking that the lease was the vehicle for allowing Duthies to have access across the site.

[29] In the rent review of 1984, Mr Duthie made reference to access across the site. As I interpret the correspondence, the point he was making was that he was not particularly interested in paying a lot of money for the car park, because it was access to the warehouse that Duthies wanted, not car parking space. The implication is that he only took the lease of the car park in order to obtain rights of access. Mr Smith understandably made some play of this, but I do not think that it is of any real significance. Taking his evidence as a whole, I do not think that Mr Duthie regarded the lease as the thing that enabled him to obtain access across the site. The exchanges about the term of the lease are inconsistent with any such linkage. His attitude, put shortly, was that he clearly had a right of access across the site because that was what the council had agreed at the big meeting; and everything that had happened thereafter had followed from the agreement at that meeting. However, even if Mr Duthie had, mistakenly, thought that it was the lease which gave him access, he was disabused of this by the council's response in the rent review correspondence. They made it plain that the lease was just for parking, and the rent review concluded on that basis. Accordingly, if there had been any force in the point up until then, it is clear that from late 1984 at the latest any lingering suggestion that access was being taken in terms of the lease was removed. Thereafter, as I have found, access was taken for a continuous period of twenty years.

[30] Accordingly, I reject the pursuer's arguments that the exercise of the right of access was attributable either to the lease or to mere tolerance on their part. I am satisfied, on the whole of the evidence, that Duthies used the site as a means of access openly and without force, asking no permission after the initial discussions. I am satisfied also that the council must have been aware that, having been party to the assurances and being aware of the expenditure on the change of access into the warehouse, they could not simply turn round and deny access across the site. In those circumstances I find that the access taken by Duthies was taken "as of right", it was unequivocally referable to the right claimed; and, in terms of section 3 of the Act, amounted to the exercise of a positive servitude over the site for a continuous period in excess of twenty years.

[31] On these findings the question whether a right of servitude requires a grant does not require to be answered. I have found that there was a grant. I have also found use taken as of right by Duthies, alternatively by Duthies and the defender, for a continuous period of over twenty years nec vi, nec clam nec precario. On either view, therefore, the defender is entitled to succeed. However, having had the benefit of full citation of authority on this point, I should say that, had I required to decide the point, I would have inclined towards the view that there was no additional requirement on a person claiming a servitude right to establish, directly or by inference, that there had been a grant. It seems to me that, if Lord Young's opinion in Grierson is to the effect that there is such a requirement, it did not find favour with the majority of the Second Division in that case. Nor is it consistent with the speeches in the House of Lords in Mann v Brodie: see, in particular, per Lord Blackburn at p.54 and Lord Watson at p.57. Although that case was concerned with the establishment by prescription of a public right of way, there can, in my opinion, be no relevant distinction in this respect between such a case and the establishment of a servitude right. However, since it is not necessary to decide the point I say no more about it.

Other claims

[32] The other claims advanced by the pursuer in this action can be dealt with more briefly. The lease terminated on 28 November 2004. The pursuer averred that the defender remained in unlawful occupation of the site until at least March 2005. The only evidence for this came from Mr Barlow. He said that the defender's "pay and display" ticket machine continued to operate until about February 2005. He said that parking receipts continued to be issued to persons wishing to park on the site who put money into the machine. He had become aware of these matters, he said, from visiting the site and seeing parked cars displaying tickets. There were discarded tickets on the site. He spoke to four tickets lodged in process by the pursuer which he said were "similar to" the ones he had seen, though he could not say that they were actually tickets taken from the site. They bore dates from late January to mid-March 2005. All of this, on his evidence, showed that the defender was continuing to use the site for car parking after termination of the lease. The pursuer claimed violent profits in the sum of £8,000, representing twice the previously agreed rental for one third of a year.

[33] I did not accept Mr Barlow's evidence as to the essential parts of the pursuer's case. The defender called as a witness a Mr McKimmie. He said that, on the instructions of the defender, he disconnected the electricity supply to the "pay and display" machine in September 2004. His evidence was supported by an invoice from his building company dated 1 October 2004. It was not suggested in cross-examination that he was untruthful in his evidence, or even that he was mistaken. In any event, I accept his evidence. The disconnection of the machine involved disconnecting armoured cable leading from the main power supply. I am satisfied that it was a permanent disconnection. I do not accept the suggestion, tentatively made, that the machine's battery might be re-charged on a regular basis so that it could be used to issue tickets notwithstanding the fact that it was disconnected. Nor was I persuaded that the parking tickets lodged in process by the pursuer were tickets issued by the machine. If the machine was disconnected, of course, they could not have been. But apart from that, they bore no text identifying them as relating to this car park site. The serial numbers on the tickets suggested that they related to a site where there was a greater turnover of vehicles parking each day. I find that the pursuer has failed to make out its case on the evidence.


[34] I shall therefore repel the pursuer's pleas in law in the principal action and assoilzie the defender from the conclusions of the Summons. I shall sustain the defender's plea in law in the Counterclaim and grant declarator as counterclaimed by the defender.