The Sheriff Appeal Court has upheld a Sheriff’s decision that a servitude right of pedestrian and vehicular access and egress over a single track road does not include an ancillary right to make use of passing places or verges.

In Macallan v Arbuckle, the SAC held that the need to move onto a verge or passing place to allow oncoming traffic to pass was necessary for the comfortable use and enjoyment of the servitude.

The circumstances here were that an express grant of servitude rights over the single track road had been granted in favour of a property when it was subdivided from a larger estate. The start and end points of the servitude were stated in the grant, and the extent of the servitude was described. It did not, apparently, include in its description the passing places or verges.

The decision is an interesting one. The SAC appears to accept that a benefitted proprietor is entitled to comfortable enjoyment of a servitude. Where that servitude is a right of vehicular access over a single track road where passing places exist and there is a possibility/probability of encountering oncoming traffic with nowhere to go, it would seem obvious that a right to make use of that passing place must be inherent within the grant. 

However, when faced with that submission, Sheriff Principal Lewis stated: “The appellants maintain that the ancillary right is to have vehicular access to the Mansion House: not simply the right to use the access road. That is not what they acquired through the grant. We acknowledge that a vehicle which cannot make progress along the roadway in face of oncoming traffic because it must reverse all the way back to the start instead of back only to the most recent passing place is inconvenienced – and no doubt sometimes significantly so – but we do not accept in light of the authorities that a right to move onto a passing place or onto the verges which lie out with the burdened area to allow other vehicles to pass is necessary for the comfortable use and enjoyment of the servitude.”  

This decision calls into question the extent to which questions of comfortable use and enjoyment are considered by the Court. In fact, is the test really whether the servitude right can be used comfortably? This decision tends to suggest that the test is really, “Can it be used?” I dare say that any driver who has encountered an oncoming vehicle on a single track road without a verge or passing place in sight will confirm that the resulting experience is anything but “comfortable”!

It will be interesting, standing the recent developments in this area of the law, whether the decision will be appealed further standing the important point of practice or principle that it undoubtedly raises. The question of ancillary rights in servitudes is a developing area, and one worthy of further judicial comment.

Separately, whilst the full extent of the pleadings is not clear from the decision, it would be interesting to know (i) the basis on which the passing places and verges were distinguished from the road surface, standing that section 151 of the Roads (Scotland) Act 1984 provides that a road includes its verge, and (ii) why it was not argued that there was an implied grant of vehicular access over the passing places where the property was subdivided from the estate at a time when the passing places were in existence.