Prescriptive Servitudes and Purpose; Ferguson v Gregors and Fowler

A recent case in the Sheriff Appeal Court clarified the Court’s approach in circumstances in which a burdened proprietor under a prescriptive servitude attempted to restrict the purpose for which that servitude could be exercised.

25 September 2023

Access rights are often the cause of disputes among neighbours. It is common for land or property to be owned without having ownership of all, or any, of the access routes to it and the law relating to “prescriptive servitudes” has developed over the centuries to provide a means for appropriate access rights to be obtained and enjoyed in circumstances where no express right of access exists.

These prescriptive servitudes were the subject of a recent case in the Sheriff Appeal Court involving a dispute between three neighbours, which stemmed from an increase in traffic across an access road due to one neighbour using their property for commercial purposes.

The facts

Mrs Gregors owns Wesleymount Farm. In 2016, she split-off part of the Farm and sold it to Mr and Mrs Fowler. Upon purchasing this plot, the Fowlers applied for planning permission to change its use to a private ‘travellers pitch’ with two caravans.

In order to reach the Fowlers’ plot, it is necessary to cross a small strip of ground owned by Mr and Mrs Ferguson and then proceed through Wesleymount Farm along a track owned by Mrs Gregors. After planning permission was obtained, the Fergusons noticed an increase in the amount of traffic crossing their strip of ground. The Fergusons raised an action in the sheriff court in order to prevent this increased use.

The submissions

Amongst other things, the Fergusons sought a court order to prevent traffic from crossing over their strip of ground for commercial or business purposes.

Mrs Gregors claimed that she had a servitude right of pedestrian and vehicular access across the Fergusons’ strip of ground. This, she asserted, was established by positive prescription; in other words, because she had been taking access over this strip of ground openly, peaceably, and without judicial interruption for at least twenty years, she had established a right to do so.

The Fergusons responded that, even if Mrs Gregors did have a servitude right of access by positive prescription, there had been no use of that servitude right of access for commercial purposes for the requisite period of time, and so that aspect of the servitude (if it existed in the first place) had been extinguished by twenty years’ non-use. Much as servitude rights can be established by use over the passage of time (known as positive prescription), they can be extinguished by non-use over the passage of time (known as negative prescription).

The decision

The court acknowledged that, in principle, a servitude which provides for both vehicular and pedestrian access might be divisible into two components with the effect that, if no vehicular access had been taken for the necessary period, but pedestrian access had continued during that time, then the right for vehicular access might have been extinguished whilst the right for pedestrian access remained.

However, what the Fergusons were seeking to establish was that ‘vehicular access’ could be further subdivided into separate categories, for example, residential and commercial. Thus, if no commercial vehicular access is taken for the requisite period, even though residential vehicular access has continued, then the right to the former could be extinguished whilst the right to the latter could remain. Therefore, whilst the servitude right established by Mrs Gregors might permit residential access (e.g. Mrs Gregors travelling to and from Wesleymount Farm), it would not permit commercial access (e.g. customers travelling to and from the travellers pitch on the Fowlers’ plot). The court rejected this argument and held that the right to take vehicular access could not be subdivided according to the purpose of the access.

In coming to this conclusion, the court noted that the proper method for control and limitation of a servitude right is in relation to the acceptable burden on the access road.

It is well established in Scots law that the person benefiting from a servitude right may not unwarrantably increase the burden on the burdened proprietor. The classic case is that of a servitude right of access, which is granted over a private road for the benefit of a piece of land, which land is then developed for housing, leading to an increase in use and, arguably, an unwarrantable increase in the burden.

The court neatly summarised the distinction in stating that, whilst the Fergusons did not have a right to limit the purpose of the traffic, they were able to restrict the extent.  

It should be noted that this approach is specific to cases where the servitude right is established by prescription. This is only one of a number of ways in which a servitude right can be established. In such other cases, a different approach would be appropriate. For example, if the servitude was established by way of written agreement, then it would be necessary to look at the terms of the servitude, which might well restrict the purposes for which access is taken.

It should also be noted that this point arose as a feature of the appeal and was not the subject of detailed submissions to the Sheriff at first instance. It is therefore possible that this point could be the subject of future litigation.

If you are the owner of land which could be subject to a prescriptive right, and you find yourself in a similar situation to the Fergusons, Please do not hesitate to contact a member of our specialist property disputes team, or get in touch with Stephanie Hepburn or Ross Simpson.