Lord Osborne

Lord Eassie

Lady Paton

[2008] CSIH 6



delivered by LORD EASSIE



in the cause


Pursuers and Reclaimers;



Defender and Respondent:


Act: S. Smith; Brodies LLP (Pursuers)

Alt: J. Robertson; Drummond Miller (for Andersonbain, Aberdeen) (Defender)

11 January 2008


[1] The parties to this reclaiming motion are in dispute as to whether the defender has a servitude right of access and egress for pedestrian and vehicular traffic over an area of ground owned by the pursuers at the junction of Shore Brae and Shiprow, Aberdeen. The pursuers conclude, inter alia, for declarator that such a servitude does not exist. The defender, in his counterclaim, concludes for a contrary declarator that he, and his successors in title in the claimed dominant tenement, do have such a servitude. Following a proof before answer the Lord Ordinary found in favour of the defender, holding that the servitude in question had been duly constituted by the operation of positive prescription. He therefore granted decree of declarator to the effect that the defender is entitled to such a servitude right of access. Against that interlocutor the pursuers have reclaimed.

[2] The facts found by the Lord Ordinary are set out in his Opinion of 19 December 2006 [2006] CSOH 196; 2007 SLT 289[1]. His findings in fact were not subject to any challenge by counsel for the pursuers and reclaimers. The findings particularly pertinent to the issues debated in the hearing of the reclaiming motion may be summarised as follows.

[3] One starts with the topography. The heritable property now owned by the defender consists of warehouse premises (incorporating a former garage) which on their longer dimension extend in a general north to south axis between the street known as Shiprow on the north side and the street known as Trinity Quay on the south. Shiprow is at a higher elevation than Trinity Quay (the land upon which the buildings are built sloping downwards in a southerly direction towards the harbour in Aberdeen). To the west the defender's property is bounded by other buildings also extending generally between Shiprow and Trinity Quay. To the east, however, the defender's property is bounded, at least to a substantial extent, by an unbuilt area of ground owned by the pursuers which has in turn as its eastern boundary the street known as Shore Brae which connects Trinity Quay with Shiprow, rising upwards from Trinity Quay in a generally northerly direction. The unbuilt area of ground is that over which the defender claims to have a servitude right of access. Put briefly, the area forming the putative servient tenement has been in that unbuilt state and generally used as a private car park since well before the commencement of the prescriptive period of twenty years provided for in section 3(2) of the Prescription and Limitation (Scotland) Act 1973 for the acquisition of the servitude right now claimed by the defender.

[4] The defender acquired ownership of the warehouse premises in the course of 2003. So much of his claim to have a servitude right flows from the actions of his predecessor in title, a company named Robert Duthie & Sons Limited - "Duthies" - and the response to those actings by the pursuers' predecessors in title - "the Council".

[5] The relevant history of events begins in about 1975 when the Council carried out alterations to Trinity Quay whereby the previous single carriageway street was turned into a dual carriageway with a central reservation. For Duthies this presented the difficulty that it was no longer practicable for large goods vehicles to enter the warehouse through the entrance to the warehouse from Trinity Quay in order to load and unload the goods necessary for the conduct of Duthies' wholesale grocery and catering supply business, as had been the practice thitherto. The only other entrance to Duthies' premises was from Shiprow, where there was an entrance into the former garage and thence into the warehouse. However, the Shiprow entrance was not high enough to allow the passage of modern large goods vehicles. So Duthies were constrained to have the vehicles park kerbside on either Trinity Quay or Shiprow and there conduct the loading or unloading of the goods. This was understandably far from ideal from Duthies' viewpoint. Nor, evidently, was it by any means ideal from the Council's standpoint. Shiprow, on the northern side of the warehouse, was a narrow street and the parking of large goods vehicles outside the entrance to Duthies' premises for the unloading of goods would often block the street for all other traffic for not insignificant periods. On the other hand, stationary heavy goods vehicles on the eastbound carriageway of Trinity Quay, at the southern entrance to Duthies' premises, were not conducive to the improved traffic flows intended by the construction of the Trinity Quay dual carriageway.

[6] The Lord Ordinary found that in 1974 and 1975 consideration was given within the Council to arranging for access through the unbuilt area - "the site" - that is to say the putative servient tenement, to those who had until then had access from Trinity Quay. (Initially access to a public house, "the Moorings", was also contemplated but the public house eventually dropped out of the picture). For such access to be taken Duthies would require to carry out substantial alterations to their building. In February 1976 Duthies applied to the Council for planning consent and building warrant for those alterations. In paragraph [6] of his Opinion the Lord Ordinary summarises those proposed alterations thus:

"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 to 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 [accompanying the application] 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] Various discussions and communings took place thereafter between officials of the Council inter se and with Duthies and the proprietors of the Moorings. The discussions included the suggestion that Duthies and the proprietors of the Moorings take a lease of the site. In due course a lease of the site for car parking purposes only was concluded between the Council and Duthies. These discussions and negotiations are more fully set out in the Opinion of the Lord Ordinary but we do not consider it necessary at this stage to enter into any of that detail. We would however record that although a contrary contention was advanced to the Lord Ordinary, it was accepted and conceded before us by counsel for the reclaimers that the access user to and from the defender's warehouse premises could not be ascribed to the lease.

[8] In paragraph [7] of his Opinion the Lord Ordinary made the important finding, based on the evidence of Mr. Duthie, that:

" ... 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."

It is also to be noted that in the course of paragraph [24] of his Opinion the Lord Ordinary observes:

"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."

[9] In the event, in 1981 Duthies carried out the substantial alterations to the buildings encompassed in the 1976 applications for planning permission and building warrants. They thereafter took access to and egress from their premises via the new large sliding doors slapped into the eastern gable of the former garage part of the warehouse premises over the site. Access and egress took place on a regular and open basis for the purposes of their business. Their use of the putative servient site for such access and egress involved a number of vehicle movements each business day. After Duthies sold the warehouse premises to the defender, vehicular access continued on a frequent and regular basis across the site, and into and out of the warehouse. No challenge to such access user was made by the pursuers or their statutory local authority predecessors until the raising of this action in 2005.

The issues arising in the reclaiming motion

[10] In presenting the reclaiming motion, counsel for the pursuers and reclaimers began by identifying two broad issues with which the reclaiming motion was concerned. The first issue was formulated by counsel as being "whether a right to plead personal bar can be fortified by prescriptive possession in such a way as to establish a servitude right." The second issue was whether the assurance given to Duthies respecting access was capable of being separated from the discussions concerning the lease; or more particularly, whether the assurance or agreement in principle which the Lord Ordinary found in para. [7] of his Opinion, to which we have referred, was superseded by the lease or was to be seen as a derogation or waiver therefrom. In his response, counsel for the defender and respondent proceeded on the basis that there were these two discrete issues, although he did not agree with the precise formulation of the first of these issues.

The first issue

[11] In advancing his argument on the first issue counsel for the pursuers and reclaimers submitted four propositions, the first two of which he took together. Neither is controversial. They are:

"1. Possession of the claimed servitude must be taken as of right, if it is to

found a basis for establishing a servitude by prescription.

2. Possession as of right must be unequivocably referable to the

putative servitude right and not some other basis such as contract, lease, or mere toleration."

The authorities in support of these propositions to which we were referred were McGregor v Crieff Co-operative Society Limited 1915 SC (HL) 93; Hamilton v McIntosh Donald Limited 1994 SC 304; Houstoun v Barr 1911 SC 134; Nationwide Building Society v Walter D. Allan Limited, unreported, 4 August 2004 (Lady Smith); Gordon on Scottish Land Law, paragraph 24-46 and Cusine and Paisley - Servitudes and Rights of Way, paragraphs 10-19 and 10-20; and the Prescription and Limitation (Scotland) Act 1973, section 3(2).

[12] Counsel for the reclaimers also bracketed together his third and fourth propositions. They were:

"3. The Lord Ordinary erred in concluding that possession taken other than

by way of toleration must have been taken as of right.

4. The Lord Ordinary erred in holding that any right of access founded on

personal bar could be used to set up a different right, namely a right of servitude."

The principal focus by far of counsel's submissions was on the latter of those two propositions. For an understanding of that complaint of error on the part of the Lord Ordinary we were taken to paragraph [24] of the Lord Ordinary's Opinion, which includes the passage to which we have already referred but which for convenience we include again in the following quotation:

"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 of the part of the Council."

[13] Counsel's criticism was largely directed to the final two sentences of the passage which we have just quoted. We hope that we do no injustice to his submission in saying that it proceeded upon a construction of those sentences to the broad effect that the Lord Ordinary had taken Duthies' ability to have pled personal bar against the Council as the mechanism by which the access enjoyed by Duthies proceeded "as of right". But, said counsel, the "right" to plead personal bar was not a right of the appropriate kind to found a claim to possession of a servitude. Pleading personal bar was an "immunity right"; it was a shield, not a sword; and therefore could never found a servitude. Counsel went on to say that at best for the defender (after the alterations) one was talking of a personal right enforceable only by Duthies and only against the Council. However, it was said, for the operation of the positive prescription, the right relied upon during the prescriptive period had to be a servitude right binding on singular successors. In support of this criticism of the Lord Ordinary's reasoning, counsel for the reclaimers drew attention to the commentary on the Lord Ordinary's decision to be found in Reid and Gretton; Conveyancing 2006, at page 122.

[14] For his part, Mr. Robertson, counsel for the defender and respondent, hastened to make plain that it was not the contention of the defender that the right to plead personal bar in a question with the Council was what founded the claim to possession of the servitude for the requisite prescriptive period. If, said counsel, the Lord Ordinary were to be read as saying that a servitude might be constituted by personal bar, as anglicé a form of "proprietary estoppel", that was not the defender's position. Counsel for the defender agreed that personal bar was a shield. If by allowing Duthies to proceed with the alterations to the buildings on the basis of their assurance that access would be granted the Council had barred themselves from objecting to access in terms of that assurance, that was, put colloquially, "their worry" and to that extent some of the concerns expressed in the commentary were misplaced. But it was not suggested that the ability to plead personal bar against the Council could have availed a singular successor (to either the Council or Duthies) before the expiry of the prescriptive period. Whether access was being taken "as of right" was to be tested objectively, not simply by issues such as personal bar, but having regard to all the circumstances - cf McInroy v Duke of Athole (1891) 18 R (HL) 46. The volume and frequency of the traffic was a useful pointer to whether access was taken as of right rather than by mere toleration. Mr. Robertson referred to Gordon on Scottish Land Law, paragraph 24-49; and Cusine and Paisley paragraph 10-19; and also referred, in the analogous context of public rights of way, to Cumbernauld and Kilsyth District Council v Dollar Land (Cumbernauld) Limited 1992 SC 357, 1993 SC (HL) 44. In the present case the circumstances of the alterations to Trinity Quay, which gave rise to the need to devise a new means of access; the permanency of the building operations; and the volume and frequency of the access which was being taken, all indicated plainly that the access was being exercised "as of right".

[15] In our opinion the submission of counsel for the defender on this branch of the case is to be preferred. The final two sentences of the passage within paragraph [24] of the Lord Ordinary's Opinion which we have quoted may have been infelicitously phrased to the extent that those sentences have evidently been capable of being construed, or read, in the terms put forward by counsel for the pursuers and reclaimers, with encouragement from the case commentary in Conveyancing 2006. There is within those two sentences a possible conflation of the concepts of (a) whether the personal bar stemming from the Council's having sat by allowing Duthies to expend money on altering their buildings prevented them from relying on any informality in the agreement in principle to allow access over the site; and (b) whether the agreement in principle contemplated only precarious user, on tolerance. Subject to that possible infelicitous expression we do not detect any substantial flaw in the approach adopted by the Lord Ordinary.

[16] In our view, the starting point is the agreement in principle which is the subject of the Lord Ordinary's findings within paragraph [7] of his Opinion. Given the background that following the creation of the dual carriageway the arrangements for operating Duthies' business were unsatisfactory - and the permanence of the dual carriageway and the narrowness of Shiprow - it is, in our view, difficult to see that the agreement in principle, conditional on Duthies carrying out the necessary alterations to their buildings, should be seen as one which contemplated only precarious use of the site for access at the whim of the Council, granted as some form of indulgence. In terms of formal validity, the agreement in principle that Duthies should take access over the site was defective. But, in a question with the Council, that invalidity could plainly be countered by Duthies by the invocation of personal bar, arguably once the Council had approved the plans to alter the buildings, but at the very least once they had stood by and allowed Duthies to carry out the significant and costly alterations to their buildings which only had sense in terms of the agreement in principle. Of course, in the event of the Council selling the site prior to the expiry of the period for prescriptive user Duthies would have been vulnerable since their right was personal and not real. No doubt a purchaser from Duthies would have been similarly vulnerable.

[17] But with the passage of time and the expiry of the prescriptive period a personal right of access may become a real right of servitude by user. That is the very nature of the creation of servitude rights by operation of positive prescription. We reject the submission advanced by counsel for the pursuers and reclaimers that the right of access upon which the prescriptive claim is founded has to be a real right of servitude. If it were a real right of servitude there would be no need to invoke the positive prescription. Cadit quaestio. In this case the Council and their local government statutory successors knowingly allowed access to be taken over their property for a period in excess of the prescriptive period and so, unless it can properly be said that the access so taken could not be "of right" but could only be by mere "toleration", the servitude right for which the defender contends is establish or constituted.

[18] In addressing the question of access "of right", we would observe at the outset the risk of a semantic confusion which appeared on occasion to surface in the discussion before us. In one sense, user which is being taken "of right" is always "tolerated", in respect that the proprietor of the servient tenement acknowledges the right and does not question it. So "toleration" in this context is, in our view, directed not so much to the mind of the proprietor of the servient tenement but to the nature, quality and frequency of the user. As was indicated in McInroy, the test is objective. In the leading speech of Lord Watson in that case, his Lordship stated, p. 48

"I do not doubt that, in order to found a prescriptive right of servitude according to Scots law, acts of possession must be overt, in the sense that they must in themselves be of such a character or be done in such circumstances as to indicate unequivocally to the proprietor of the servient tenement the fact that a right is asserted, and the nature of the right".

Very occasional user in peculiar circumstances may readily be ascribed to a sense of helpfulness or personal obligement on the part of the proprietor of the servient tenement. But as is stated in Gordon on Land Law paragraph 24-49:

"If usage is only occasional, the court is likely to infer that the usage was by tolerance rather than as of right. As a matter of good neighbourhood a proprietor is not likely to object to occasional use of his property by a neighbour, and the law does not oblige him to object to such occasional use in order to prevent his neighbour from acquiring a right. But if use is substantial and fairly constant, challenge is necessary to preserve freedom from servitude rights, and the challenge must be successful. Persistence in use in face of an unsuccessful challenge is good evidence of use as of right".

To similar effect are Cusine and Paisley at para. 10-19 in fine, where they say:

" ... what matters is the volume of possession. Where the volume is reasonably substantial, taking account of the nature of the right claimed, this will be regarded as adverse and as the assertion of a right."

[19] On that objective approach, (leaving aside any question respecting the car parking lease) and having regard to the primary facts found by the Lord Ordinary we consider that it can readily be deduced that the user exercised by Duthies and the defender as successor in title, was "as of right". We have already alluded to the circumstances leading to the agreement in principle. Those circumstances were not transitory, since the problem presented by the conversion of Trinity Quay into a dual carriageway was effectively permanent. The width of Shiprow was also a matter of permanency. And thus the agreement in principle addressed a long term problem requiring solution in both parties' interests. The Council approved Duthies' plans to carry out the alterations; and they knowingly allowed Duthies to carry out those works. These were costly works of a permanent nature which, as the Lord Ordinary points out, only made sense were Duthies to have a right of access. Having thus created the new entrance to their premises, Duthies then took vehicular access to, and egress from, those premises on a regular, open, daily, basis involving a significant number of such vehicle movements on every business day. Setting aside any question arising from the lease, in our view these circumstances demonstrate user as of right during the prescriptive period.

The second issue

[20] The second issue debated in the hearing of the reclaiming motion concerned the lease. The discussions and negotiations concerning the lease between the parties are set out in some detail by the Lord Ordinary in his Opinion. As he records, in 1976 when the formation of a new vehicular access was initially under discussion, it appears that consideration was given to leases being granted to Duthies and the Moorings of the site for car parking and for access. In due course the Moorings dropped out and negotiations continued with Duthies alone. In 1978 the Council offered Duthies a five year lease of the site on condition that it be used "for the parking of vehicles and for no other purpose whatsoever". Duthies' response was that in view of the expense required to make the site appropriate for commercial exploitation as a car park, including the erection of a boundary wall and an entrance barrier, the term of five years was too short. Duthies proposed 25 years (with rent reviews) which was eventually agreed. The lease was executed in December 1980 with the date of entry given as 15 November 1979. Clause THIRD provided:

"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".

None of the other provisions of the lease touched in any way upon the question of vehicular access to the warehouse premises. At this point in time Duthies had not carried out any of the alterations necessary for, and thus conditional upon, effect being given to the agreement in principle respecting access.

[21] Before the Lord Ordinary it was submitted on behalf of the pursuers and reclaimers that the incidental rights conferred by the lease included that of vehicular access to the warehouse through the site and that accordingly the vehicular access enjoyed by Duthies, and subsequently by the defender, until the ish was referable to the lease. The Lord Ordinary rejected this contention and counsel for the reclaimers made plain that the contention was not renewed. It was accepted by counsel for the reclaimers that the permitted use under the lease was for car parking only and that the use of the site for vehicular access to the warehouse was contrary to the terms of the lease.

[22] Instead, the argument was firstly that the question of access and the question of car parking having been to an extent interlinked in the discussions preceding the execution of the lease, the execution of the lease superseded all previous negotiations. And, since the lease made no provision for access, any assurance or agreement in principle that access would be given if the alterations to the warehouse premises were to be made should similarly be treated as superseded.

[23] Counsel for the reclaimers made no reference to authority in connection with this aspect of his argument. The principle or doctrine of supersession is in many respects a principle of construction of the formal document. One has to construe the formal document in accordance with its terms and without reference to prior communings. But in our view it only applies as respects the subject-matter of the formal document. An agreement which was not intended to be incorporated in the formal agreement may survive (cf. Winston v Patrick 1980 SC 246). The lease is now accepted not to encompass any rights of access and so, a fortiori of the Lord Ordinary's rejection of the supersession contention which was also advanced to him, we agree with that rejection. It may be noted that the lease was concluded prior to Duthies carrying out any of the alterations, upon which their taking access across the site was dependent. For various reasons, Duthies might have been unable, or reluctant, to carry out those costly alterations. So a separation of the car parking user (being the sole user under the lease), from the issue of access, dependent upon the carrying out of those alterations is understandably evident.

[24] The second submission advanced on behalf of the reclaimers by counsel in this chapter of the argument was that the taking of regular vehicular access over the site was to be attributed, in some way, to some form of derogation from or waiver granted under the lease, and was therefore a matter of benign toleration by the landlord.

[25] We are also unable to accept this submission. The lease did not envisage any exception to the user restriction in clause THIRD other than such an exception approved in writing. It is not suggested that any such approval in writing to the use of the subjects for access was ever given by the landlord. On the contrary, in the rent review discussion set out in the Lord Ordinary's Opinion the Council firmly took the view that the lease did not provide Duthies with any right of access; use of the site for the purposes of access was contrary to the terms of the lease.

[26] In these circumstances we have come to the view that the second issue must also be determined favourably to the defender and respondent.


[27] For these reasons we consider that the reclaiming motion must be refused. We shall therefore adhere to the interlocutor of the Lord Ordinary.