A holder of a servitude right of access is entitled to use it free from “unreasonable obstruction”. In the case of Skene v Braveheart Hotels Ltd [2021] SC DUN 25, the court found that the installation of gates across an access road did not amount to an unreasonable obstruction.

Facts

Fouracres, owned by Mr Skene, benefits from a servitude right of access over private roads in the grounds of neighbouring Fernie Castle, a hotel and wedding venue owned by Braveheart Hotels Ltd.

The private road leading to Fernie Castle splits into two routes. The northern route passes the front of the Castle and the southern route takes a longer passage around the Castle before joining the northern route and leading to the Castle car park and onwards to Fouracres. Mr Skene could use either the northern or southern routes in accordance with his servitude right of access.

Following several near misses involving hotel guests and vehicles, Braveheart installed timber gates at each end of the northern route and put up a "no entry" sign beside the first set of gates, which was likely to divert visitors to use the southern section.

The gates could be avoided by Mr Skene by taking the southern route. Mr Skene submitted that the narrow single track southern section was dangerous.

A sign on one set of gates indicated that they should be pushed to open, which Mr Skene struggled to do due to health issues. Mr Skene claimed they were heavy, improperly hinged and had to be lifted. If pulled open, the gates dragged against the ground. Mr Skene began to open the gates using potentially damaging methods.

Mr Skene raised an action seeking an order for removal of the gates claiming that they were an unreasonable obstruction of his servitude right of access. Braveheart counterclaimed for an interdict to stop the pursuer damaging them.

Was there an unreasonable obstruction?

A gate is not an unreasonable obstruction of a right of access if a person of average strength and agility would be able to open it without material inconvenience. The court found that the gates in question met this test if pushed, in accordance with the sign.

The legal test did not require Mr Skene's health to be considered. The right of access attaches to a property and not a person. The burden of a gate is measured by reference to a reasonable but fixed and constant standard and not to the individual characteristics of the holder of the right at that time.

Whilst the gates required some adjustment to minimise the inconvenience, the gates did not prevent vehicular access. Mr Skene had a right to alter or adapt the gates to his convenience and a right to enter onto the land to carry out the works required to maintain his servitude right, at his expense.

The court found that the installation of gates for health and safety reasons was justified.

In addition, any inconvenience from opening the gates could be avoided altogether by taking the southern route. Although that section was narrow, the court found that it could be used for travel in both directions without posing unacceptable safety risks.

The court granted the interdict sought by Braveheart, prohibiting Mr Skene from damaging or removing the gates.

Comment

A gate across an access road obviously causes some measure of inconvenience. However, the courts have consistently upheld the general right to erect gates – provided they do not interfere, in a fair and reasonable sense of that expression, with the right of passage. What constitutes a material inconvenience will vary from case to case. Communication with holders of rights of access before making any changes to the route is advisable, with a view to avoiding disputes.

Landowners should also remember that installation of gates and signs barring entry may be a breach of their obligations under the Land Reform (Scotland) Act 2003, if done with a view to preventing members of the public from exercising rights of responsible access, rather than legitimate land management purposes.

Contributors

Chloe Wales

Senior Associate

Paul Sanders

Senior Solicitor