Consultation Response
Servitudes without Benefited Property
The Law Society of Scotland’s response
September 2015
© The Law Society of Scotland 2015
Introduction
The Law Society of Scotland (the Society) aims to lead and support a successful and
respected Scottish legal profession. Not only do we act in the interests of our solicitor
members but we also have a clear responsibility to work in the public interest. That is why
we actively engage and seek to assist in the legislative and public policy decision making
processes. To help us do this, we use our various Society committees which are made up
of solicitors and non-solicitors to ensure we benefit from knowledge and expertise from both
within and out with the solicitor profession.
The Society’s Property and Land Law Reform Sub-committee welcomes the opportunity to
consider and respond to the Scottish Governments request for views on servitudes without
a benefited property. The Sub-committee has the following comments to put forward:
Comments
Scots Law does not recognise the concept of a servitude which is generally exercisable by
persons without it being attached to a definite benefited property. It would be accepted of
course that public rights of way and public access rights are similar to servitudes without a
benefited property but these are public types of right and not private ones. English law does
recognise the concept of easements in gross but Scots law does not.
Long Continuous Pipelines and Cables
Problems do arise especially where long pipelines, cables, and the like are concerned. The
legal question often posed is whether a strip of land forming a route from A to B thence
from B to C and further can be the subject of a single servitude or even a series of
interlinked servitudes. For example an electricity cable might run from a generating station
at point A which is owned by a power company. The cable then may run through property B
and then through property C and then through property D etc. The ultimate destination
might be a switching station or new housing estate where branch cables are taken for
individual houses. In such a case it is difficult to know which is the benefited property and
which is the burdened property. One could argue for example that since the cable is
ultimately designed to serve a number of houses on a housing estate all of these houses
are benefited properties. Do all these benefited houses need to be described? The difficulty
is then in identifying how many servitudes you need to create. A situation can arise where
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one piece of ground could be regarded as a burdened or servient property so far as the
preceding area of ground is concerned but also a dominant or benefited property so far as
the succeeding area of land is concerned. You could therefore have cumulative servitudes
along the route.
The Park Yard Solution
The issue was addressed by the House of Lords in relation to former tram lines going
through Scotstoun in Glasgow 1. An unrecorded agreement set out the route of the
tramlines as it passed through what were then landed estates in Scotstoun and Whiteinch.
What the House of Lords held was that there were in effect reciprocal servitudes to use the
tramway in favour of all the parties within each successive section of the property through
which the tramlines passed. These sections formed burdened properties in so far as they
were subject to the tramway. There was no specific identification or description in the
agreement of a benefited property. The rights appeared to be granted in favour of
Whiteinch Railway Company. The purpose of the tramway was to communicate with the
main railway line of the North British Railway. In the Court of Session the Lord Ordinary
took the view that no servitudes had been created. The House of Lords held differently.
Lord Watson stated:
"If the language of the agreement be incapable of raising anything beyond a mere personal
obligation upon the feuars it is idle to speculate whether there was or was not a dominant
tenement in existence. On the other hand if the terms of the agreement show that it was
the intention of the feuars to create a right of way over their land whether for a definite
period or in perpetuity, in order that it might serve as the means of conveying goods to and
from a tenement which, in the contemplation of all, or even some of the parties to the
agreement, was to be acquired or constructed, the fact of its not having been so at the
date of the agreement could not, after it was actually acquired or constructed, prevent the
right of way from becoming a legal accessory to it provided that such right of way was so
used as to give reasonable notice of the burden to any person in whom the property feus
might subsequently become vested.
1
North British Railway v Park Yard Co Limited (1898) 25R (HL) 47; discussed in Cusine and Paisley, Servitudes and
Rights of Way at 2.37, 2.39 and 2.41
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While one might applaud the practical nature of the judgement the statement that it was
"idle" to speculate whether there was or was not a dominant tenement (benefited property)
might not find favour with academic lawyers or indeed other courts.
Recent Case Law
The Park Yard case however has become something of a classic and was referred to in
William Rennie & Co Limited v BP Exploration Operating Co Limited 2. The case related to
a servitude which had been granted by a farmer to BP for a section of pipeline from the
Forties field to Grangemouth. As is common in servitudes of this nature there was a
provision that if a development on the surface of the land was prevented by reason only of
the pipeline then BP, as the holders of the servitude, had an obligation either to move the
pipeline so as to permit the development or pay compensation for the loss of the
development. The farmer sold out to a developer who applied for planning permission for
house building. The planning authority refused the permission on the grounds of public
safety. Relying on the provision in the deed of servitude the developer claimed
compensation for BP. The court agreed that compensation was due. The case is not
significant for the decision itself but more for the reasoning which the Lord Ordinary
adopted. He took the view that the terminal installations were dominant tenements or
benefited properties at both ends of the pipeline. He summed up the legal situation in the
following terms:
"Robert Couper Zuill was a farmer who lived at and owned Tapitlaw Farm, Oakley, Fife. BP
Oil Development Limited were owners of two terminal installations one on an area of
ground at Kinneil, Kerse and North Haning in West Lothian and the other on an area of
ground at Netherbroadmuir, Aberdeen and of 36 inch diameter pipeline running between
these two installations. The grant of servitude related to that pipeline. The terminal
installations were the dominant tenement and the farm and lands of Tapitlaw were the
servient tenement."
2
2011 SC 475
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Academic Comment
Cusine and Paisley outline the practice to be adopted in relation to long pipelines in their
chapter on the rights and obligations implied by law in relation to servitudes 3. They state
that the practice relative to lengthy pipelines is to state that the dominant tenement
constitutes not only the start of terminal plot of land at the near end but also the terminal
plot at the far end so that in a sense the servitude runs both ways. Put another way there
are two dominant tenements. Cusine and Paisley also deal with the point that there is a
principle of the law of servitudes that there must be some degree of proximity between the
dominant and servient tenements. Their view however is that complicated provisions are
not necessary. On the one hand they state the pipeline itself may be sufficiently substantial
to constitute a dominant tenement in its own right and may effeir to the ground itself as the
servient tenement. Secondly they take the view that the law relevant to physical proximity in
terms of praedial interest would bend to accommodate these lengthy pipelines simply
because engineering and construction knowledge has moved on 4. I agree with this view.
Restrictions on Personal Servitudes
If it were possible to have a servitude granted without a benefited property then some of
these technical problems could be overcome. Presumably the scheme would be similar to
the scheme set up in the Title Conditions (Scotland) Act 2003 for personal real burdens. I
would personally not be in favour of allowing personal servitudes in favour of individuals as
this might encourage the creation of personal ransom strips.
Statutory Powers
There are of course also various statutory powers of compulsory acquisition 5. These are
akin to personal servitudes but not of general applications which can only be granted in
favour of public bodies and certain charities.
3
Cusine and Paisley, Servitudes and Rights of Way 12.176
see also Cusine and Paisley 2.51
5
For example Schedule 3 to the Electricity Act 1989
4
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For further information and alternative formats, please contact:
Brian Simpson
Law Reform
DD: 0131 476 8184
E: [email protected]
The Law Society of Scotland
Atria One, 144 Morrison Street
Edinburgh EH3 8EX
www.lawscot.org.uk
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