Alasdair MacNab, the proprietor of Kildun Farm in Dingwall, argued that the agreement between his parents and the council had created an implied servitude right of access, which the council claimed was limited to agricultural use. The action was also opposed by Iain and Dawn Gilmour, who argued that the right of access the pursuer claimed would involve crossing over what they said was their land.

The case was heard by Lord Harrower in the Outer House of the Court of Session. T Young, advocate, appeared for the pursuer, Burnet KC for the first defender, and Garrity, advocate, for the second defenders.

Equivalent right of access

The pursuer’s family had owned Kildun Farm since 1977. In the 1990s, the council proposed to acquire part of the farm in order to upgrade the A862 between Maryburgh and Dingwall. Ultimately, the pursuer’s parents reached an agreement with the council on compensation and other matters. According to the pursuer, the terms of that agreement included an unrestricted right of access to and from the field lying closest to the north-eastern boundary of their farm over adjacent land also being acquired by the council as part of the road improvement project.

While it was not disputed by the council that the circumstances of the transaction might give rise to an implied servitude right of access, it maintained that any such right was limited to access for agricultural purposes. The second defenders further contended that the right sought by the pursuer involved access over what was their land, while the pursuer objected to their right to defend the proceedings on the basis that they did not own any part of the land over which he sought to establish access rights.

For the pursuer, who had an outstanding planning permission application for retail premises on the land, it was submitted that the clear intention in the overall transaction was to provide Kildun Farm with an equivalent right of access to the field to the one enjoyed at its previous access. The consensus between the parties that a separate access would be provided had never changed, was intended to have serious commercial consequences, and was intended to be binding.

Counsel for the first defender submitted that there was no evidence of the council and Mr MacNab senior entering into any contract for field access, and any such contract would certainly not have been for unrestricted vehicular access. The negotiations were about the design of the road, not access rights, and the Council had reasonably proceeded on the basis that the pre-existing track would be used for access.

Didn’t involve concession

In his decision, Lord Harrower said of the Gilmours’ interest in the case: “The pursuer’s second conclusion for declarator was premised on the existence of a public right of passage over the council’s land, and since the pursuer’s exercise of any such right must be consistent with the rights exercised by others, including the Gilmours, it would be going too far to suggest that the Gilmours had no right to be heard in relation to this aspect of the dispute.”

Turning to the issue of implied servitude, he said: “Counsel for the pursuer submitted that if access had been intended for agricultural purposes only then there would have been no point in keeping alive the possibility of an application for planning permission for housing. However, this interpretation places far too much weight on what, in 1997, was still the early stages of negotiations that took a further three years to complete.”

He went on to say: “Whatever may have been the basis for the council’s position, it certainly didn’t involve any concession that the MacNabs ever enjoyed a pre-existing servitude right of access down the pre-existing track. And since the pursuer has not established, because his case was not founded, on any pre-existing servitude, I am not sure, upon analysis, that the council can properly be said in this action to have made any concession to the pursuer at all.”

Lord Harrower concluded: “The peculiarity of the new access road is that it appears to have been designed to allow vehicular access to be taken by private landowners such as the pursuer. But there was no evidence of members of the public generally taking vehicular access down the access road, and, as I have already held, it was certainly not designed and built to facilitate routine vehicular access. I would therefore decline to grant decree of declarator in terms of the second conclusion.”

The court therefore declined to grant any of the declarators sought by the pursuer.