APPEAL BY BRIDGET JOANNA THOMSON AGAINST LINDSAY ROBERTSON SAVAGE

Factual and Procedural Background

This appeal concerns a dispute over title conditions affecting properties in a courtyard at Liberty, Elie, Fife. Originally, the courtyard included stables and a garage, with access from the road to the north. The stables were converted into three houses sold in 1961, while the courtyard remained under separate ownership. In 1992, the Appellant purchased the middle house and has used it as a holiday home. The title to these properties includes rights of access and parking over the courtyard, with maintenance obligations reserved to the owner of the courtyard.

In 2014, the courtyard and garage were sold to the Respondent, who demolished the garage in 2016 and obtained planning permission to erect a new house on the site. The Appellant initiated court proceedings to prevent this development, asserting that it interfered with her parking rights. An interim interdict was granted in 2018 to halt the project, but these proceedings have been put on hold pending determination by the Lands Tribunal for Scotland of an application to vary the title conditions.

The Lands Tribunal application sought to vary the servitude burden by excluding a strip of the courtyard extending 8.05 metres from the eastern boundary from the access and parking rights. This was intended to enable compliance with a planning condition requiring a grassy area north of the proposed dwelling to be used as parking for two cars. The Appellant contended that the servitude entitled her and other benefitted proprietors to park multiple cars anywhere in the courtyard, including the grassy area, whereas the Respondent argued the servitude only allowed parking of one car immediately in front of each property and that the variation was reasonable to clarify that the grassy area was not subject to the servitude.

The Lands Tribunal granted the variation, concluding that it was reasonable to do so, restricting the servitude rights to exclude the grassy area, thus allowing the development to proceed. The Appellant appealed this decision to the Court of Session.

Legal Issues Presented

1. Whether the Lands Tribunal had jurisdiction under section 90(1)(a) of the Title Conditions (Scotland) Act 2003 to vary the title condition by excluding land from the burden that was arguably not subject to the servitude rights;
2. Whether the variation granted by the Lands Tribunal was reasonable within the meaning of section 98 and 100 of the 2003 Act, having regard to the factors relevant to varying a title condition.

Arguments of the Parties

Appellant's Arguments

• The Lands Tribunal lacked power to grant the variation because it purported to exclude land from the burden that was not legally subject to the servitude rights, rendering the order unnecessary and ultra vires.
• The order was per se unreasonable as it was wholly unnecessary under the 2003 Act.
• The Appellant intended to continue asserting her parking rights over the entire courtyard, including the grassy area, in separate sheriff court proceedings, noting that the Tribunal’s interpretation had no binding effect.

Respondent's Arguments

• The Tribunal’s order was not ultra vires or unnecessary as it did not exclude land already unburdened but clarified the extent of the servitude rights in the context of parking.
• The hearing focused on parking rights, but access rights over the whole courtyard remained.
• The Tribunal was entitled to consider the extent of the existing rights when assessing the reasonableness of the variation.
• The test was one of reasonableness, and there was no obligation to await the outcome of the sheriff court proceedings before seeking the variation.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court addressed two primary questions: first, whether the Tribunal’s order was a genuine variation of the title condition or a mere replication of existing rights; and second, whether the variation was reasonable.

The court found that the order was materially different from the pre-existing condition as it restricted the land subject to the servitude, thereby removing an obstacle to the Respondent's development plans. This confirmed the Tribunal’s jurisdiction under section 90(1) of the 2003 Act.

Regarding reasonableness, the court noted that the Tribunal carefully considered all relevant factors under section 100 of the Act, including the practical implications of the variation and the planning permission context. The Tribunal’s view on the scope of parking rights was advisory and non-binding, and the Appellant acknowledged she would continue to assert her rights in other proceedings.

The court agreed with the Tribunal that the variation was reasonable and appropriate to resolve the dispute and allow the development to proceed. There was no legal error or flaw in the Tribunal’s decision.

Holding and Implications

The appeal was DISMISSED.

The court upheld the Lands Tribunal’s order varying the title condition to exclude the eastern grassy area from the access and parking servitudes. This decision removes an impediment to the Respondent’s development of the property in accordance with planning permission. The ruling does not set new precedent on the interpretation of the servitude rights, which remain subject to separate legal proceedings initiated by the Appellant. The interim interdict previously granted should be recalled, allowing the development to proceed.