Diversification continues to be a hot topic within the Scottish rural sector as landowners capitalise on opportunities to put their land to alternative, and more profitable, uses. The recent case of MacNab v Highland Council demonstrates how the matter of access rights has the potential to throw the proverbial spanner into the works.
In Scots law, access rights over third party land can be unrestricted, ie. for any purpose, but they are more commonly granted for a specific purpose, such as agricultural use only.
An unrestricted right of access, formalised in writing as a servitude right which “runs with the land”, is the ideal position for landowners looking to diversify, though the risk of a proposed development “increasing the burden” on the owner of the access must still be considered.
On the other hand, landowners with narrower, more restrictive rights, or more ambiguous rights, should exercise caution before investing too heavily in plans for development.
Case background
Mr MacNab is a second-generation farmer, having taken over the family farm, Kildun Farm near Dingwall, previously operated by his parents since the 1970s. He brought an action against Highland Council seeking declarator that he had an unrestricted right of access over an access track constructed and owned by the Council to a particular field within his ownership.
Mr MacNab’s intention was that the field, which had until that point been used as arable land, be converted into a tractor retail and servicing development. The proposed development had recently been granted planning permission. The extent to which Mr MacNab had access rights over the track was likely to be crucial to the successful pursuit of this alternative use and the court noted that this was very much “the elephant in the courtroom”.
During the 1990s, when Mr MacNab’s parents, now deceased, had owned and run the farm, the Council had acquired land from them in connection with the upgrading of the A862 public road adjacent to the farm.
Discussions surrounding the upgrading of the road, and the acquisition of land for that purpose via the mechanism of compulsory purchase, had gone on for a number of years. This involved the Council negotiating with, and taking on board the views of, a number of the local landowners. One consequence of these discussions was the construction by the Council of the access track which had become the subject of their dispute with Mr MacNab. The track led from the upgraded A862 to a level crossing and a gate along the route gave access to Mr MacNab’s field.
Mr MacNab’s position was that this access track was intended by the Council to be a direct replacement of the access his parents had previously enjoyed directly from the old A862 onto their land, which was no longer possible. Prior to their deaths his parents had provided sworn statements that their understanding of the position was to that effect but, critically, any agreement arising out of those negotiations had never been formalised. As the original access was, by its nature, unrestricted, the argument would then follow that the replacement access constructed by the Council was intended to be similarly unrestricted.
The Council had a different recollection regarding how and why the new access track came into being. Their position was that it was not a direct replacement of the MacNab’s original access at all, but rather an upgrade of an existing track already used variously by pedestrians, local anglers and local farmers to access fields and drive cattle, including the MacNabs to access the field in question. They accepted that they had constructed the track on the understanding that the MacNabs had a right of access over the pre-existing track, but only for the purposes of agricultural activities in the field. All that being the case, the Council’s position was that the track was not intended nor suitable for general, unrestricted pedestrian and vehicular access.
Decision
Mr MacNab was ultimately unsuccessful in his action. It did not do him any favours that the evidence showed that, during negotiations in the 90s, his parents had stated that the field required its own separate access, rather than taking access via adjoining land in their ownership, in order to prevent contamination of the crops from livestock in the adjacent fields. This gave weight to the Council’s argument that any right of access which existed was intended to be for agricultural purposes only. Mr MacNab further argued that his parents had advised the Council at the time of negotiations that they may seek planning for other uses in the future but the court did not see much merit in that argument.
Comment
Lyndsey White, Senior Associate in our Rural services team commented on the case as follows:
“It is of note that the Council conceded that they had probably intended at the time to grant a formal servitude in favour of the MacNabs over the access track but it had, for one reason or another, simply never been done. They maintained, however, that any such servitude would have been restricted to access for pedestrians and agricultural vehicles for the cultivation of the field only.
“A cautionary tale indeed for rural landowners to ensure that any agreements with third parties regarding access are promptly formalised in writing, with the appropriate legal advice sought, lest it prove a stumbling block to any future proposals for development and diversification.”
