The recent decision in the long running litigation between neighbours in Ruddiman v Hawthorne marks yet another cautionary tale which emphasises the need to engage legal advisors who appreciate the wider picture.
The case illustrates the importance of having the appropriate accesses, services and servitudes in place before selling and splitting off parcels of land, particularly where there is a possibility to develop the retained land in the future.
A servitude is a right over a piece of land (the burdened property) for the benefit of another (the benefitted property) and it can give someone else rights over your property. Conversely, it can give you rights over a property belonging to someone else. Common examples of servitudes include:
- right of access to property
- right of drainage and/or sewage
- right to draw water from a private water supply
Facts
This particular dispute begins with the purchase of a mansion house and adjoining land on the outskirts of Aberdeen by Mr and Mrs Hawthorne. Whilst the Hawthornes intended for the mansion house to be the family home, they also appreciated the expansive surrounding land for its developmental potential. Upon deciding they did not wish to live in the house, they sold the mansion together with the immediate ground and access driveway but retained two contiguous parcels of land (“Site 1” and “Site 2”).
The Hawthornes decided to build a new family home on Site 1. Access to Site 1 was taken via a horseshoe-shaped driveway owned entirely by the new owners of the mansion house. Upon splitting off the parcels of land, a pedestrian and vehicular right of access (servitude) had been retained in favour of Site 1. This was uncontroversial and unchallenged.
The spanner in the works however came when the Hawthornes sought to redevelop “Site 2”. As a steeply sloping area of scrubland and bushes, the land was not immediately capable of redevelopment. After much perseverance the Hawthornes obtained outline conditional planning permission in 2012. The problem which arose however, was that Site 2 only benefited from a pedestrian right of access through a small access lane which clearly was unsuitable for construction traffic. Site 2 did not benefit from any vehicular access of its own.
At this stage in our cautionary tale, we meet Mrs Ruddiman, the now owner of the mansion house, who was firmly opposed to any development of Site 2. Mrs Ruddiman’s concern was that the Hawthornes would in effect use Site 1 (with the benefit of vehicular access over her drive) as a bridge to Site 2, which lacked any independent vehicular access of its own.
The law
The law governing this area is well settled following the case of Irvine Knitters Limited v North Ayrshire Co-operative Society and this was not in dispute between the parties. The dispute concerned the application of the law to the current facts. The settled law is that an owner of two contiguous properties cannot use one property which benefits from a right of access as a “bridge” to the adjacent property which lacks access.
The decision
On the facts, Lady Paton in the Court of Session agreed that the Hawthornes’ intended use of Site 1 as a means of access to Site 2 was in effect a “bridge” and falling squarely within the Irvine Knitters’ rule. The conclusion being that Mrs Ruddiman had made out a relevant case and the case was allowed to proceed to a substantial hearing on the facts. Whilst it is not the end of this tale, it does seem that the Hawthornes are doomed to fail in their redevelopment of this parcel of land.
This decision clearly brings to sharp focus one of the perils that can arise if a landowner carves out areas of land with development potential without retaining the necessary access rights and other services. Site 2, without appropriate access, is commercially devoid of value and incapable of independent development.
Advice for landowners and developers
The Hawthornes’ situation is far from unique and demonstrates the importance of having foresight at the outset, if there is even the faintest possibility that land may be developed some time in the future. The problem would have been avoided entirely if Site 1 had not been legally separated from Site 2, as the whole area of land would have benefited from the right of access.
The need for foresight is not limited to those splitting off parcels of land, but also purchasers who have development plans in mind. With land and housing at a premium, more and more people are turning their hand to development.
It is important to be mindful that access is not the only spanner which may be thrown into your development works, it is also necessary to consider the provision of services and utilities. Existing services may be inadequate and require to be re-visited particularly if further development is going to increase the burden on the burdened, neighbouring property.
Commentary
The law on servitudes has developed over the centuries and continues to develop. Despite this, the lack of necessary services and access is not always a problem which can be overcome after the event, and the law will not necessarily assist in plugging/bridging any gaps. It is clear from this decision that the enforcement of private law rights of servitude or real burdens continues to be an effective private way of regulating the control and development of land.
If you are considering developing your land or are in dispute with a neighbouring owner regarding their development of their land, please get in contact with our dedicated teams in Dispute Resolution and Litigation, Commercial Property, Residential Conveyancing and Rural Services, who will be able to advise.
