Servitudes of access rarely reach the courts for determination, notwithstanding that their existence and use can, in practice, often be contentious. For example, has the servitude been properly created? Is it established by prescriptive possession? Is it being exercised civiliter? A different question was considered in Skene v Braveheart Hotels Ltd  SC DUN 25, that is what constitutes an “unreasonable obstruction” of another’s servitude rights of access?
Mr Skene, owned land known as “Fouracres” near St Andrews, which land benefits from two servitude rights of access over his neighbour’s private roads within Fernie Castle estate; one access to the south, and the other to the north. Fernie Castle, is operated by Braveheart Hotels Ltd as a luxury hotel and wedding venue.
In 2018, due to health and safety concerns following several accidents, Braveheart implemented a one-way system through Fernie Castle estate. To that end they installed two sets of timber gates on both of the access routes. They asked Mr Skene to use the southern access route as a two-way system to enter and exit Fouracres. A no entry sign was attached to the gates on the northern route (which served as the exit to the one way system).
Mr Skene challenged Braveheart’s actions. He claimed that the gates would greatly interfere with his ability to exercise his servitude right of access, resulting in him having to stop and exit his car to open the gates each time he wished to pass through. One set of gates proved particularly difficult due to improper installation, resulting in them dragging along the ground. This made the gates more difficult for Mr Skene to operate, given his recent hip operation.
As such, he resorted to opening the gates by using the force of his car.
Mr Skene sued for removal of the gates.
Servitudes of access are governed by the common law, which states that the benefited (or dominant) proprietor is entitled to exercise access free from “unreasonable obstruction”. Mr Skene claimed that the gates amounted to such an obstruction. Obstruction is not “unreasonable” when it has an “immaterial interference with the rights of the dominant tenement”. The test of whether the obstruction would have an immaterial interference is dependent on the circumstances of each case; but those circumstances do not include the particular circumstances of the pursuer.
Sheriff Drummond QC identified the rule laid out in Drury v McGarvie 1993 SC 95, whereby a gate is not an obstruction when a person of average strength and agility, “the ordinary able bodied adult”, would be able to open it without material inconvenience. The onus was therefore on Mr Skene to evidence that an average person would struggle to open the gate. The test was not whether Mr Skene himself, as the pursuer of the action, could open the gate without difficultly. It is objective rather than subjective.
In this instance, it was found that while the presence of the gates would cause a degree of inconvenience to those passing by, the inconvenience did not amount to a “material” inconvenience to a person with average strength and agility. Along with that, most of the inconvenience caused could be avoided by following the directions set out on the gate. For those reasons, Mr Skene’s order for the removal of the gates was not granted.
What does this mean?
If raising a claim regarding the obstruction of a servitude right of access on the basis of unreasonable obstruction, the onus will be on the pursuer to evidence that the obstruction causes a material inconvenience to the average person; as a servitude right of access is a real right and not a personal one, and that the burden on the servient proprietor is a continuing one, this meant that the test needed to be applied to a constant and fixed source.
This possibly does however beg certain questions from the perspective of the Disability Discrimination legislation, and how this interplays with servitudes and other access rights. Perhaps a thought for another day.