Servitude rights and the use of verges by Nicola McCluskie
In Scottish property law, the scope of a servitude right of access can often be subject to debate, particularly where the right may have to be exercised over areas adjacent to the main access route. The Sheriff Appeal Court’s decision in Beaton v Hendry [2024] SAC (Civ) 30 offers a timely clarification of this principle, which may have implications for a broad range of developments.
Mr Beaton acquired Angus House Farm, Longmorn, in 2018, which benefitted from a servitude right of access set out in a 1961 Disposition. This right allowed use, “for all usual purposes,” of private roads and ways forming part of the wider lands. The access route, an unclassified public road leading via a track over neighbouring Ordhill Farm, owned by Mr Hendry, was subsequently obstructed by Mr Hendry through the placement of barriers along or near the track edges, impeding agricultural vehicles.
The dispute between Mr Beaton and Mr Hendry centred on whether the servitude extended to use of the verges, particularly for manoeuvring larger agricultural machinery. The terms of the grant were silent on verge use, prompting litigation for declarator and interdict raised by Mr Beaton.
The court held that the phrase “for all usual purposes” inherently contemplated occasional use of verges and bellmouth areas where reasonably necessary, to enable lawful access. Such use, the court observed, is not uncommon and may be essential for certain vehicles to pass without damage or undue restriction. Accordingly, the servitude right was confirmed to encompass reasonable verge use as part of the access route.
The case raises important questions about the adaptability of servitude rights to evolving land uses. While agricultural vehicles fell within the scope of “usual purposes” in this instance, the outcome might differ for more intensive or novel uses, such as heavy construction traffic for a renewable energy installation, where the original purpose may not reasonably be stretched to accommodate the new demand.
From an underwriting perspective, this decision underscores the importance of anticipating potential disputes over use of access routes within third party ownership, particularly where verge or bellmouth use may be critical. For developments where use of access routes by construction traffic will be key, such as anaerobic digestion plants, there may be a heightened risk of objections from servient owners if the increased traffic is perceived as an intensification beyond the granted purpose.
Title indemnity insurance can mitigate this risk by protecting developers and lenders against claims seeking to restrict access, including ancillary verge use. Such coverage offers assurance that, should obstruction occur, the insurer will step in to resolve disputes and minimise disruption to project delivery.
This judgment reinforces that servitude rights must be read in their practical context, and that proactive risk management, including insurance solutions, remains a prudent measure where interpretation may be contested.
