SP Distribution Ltd v. Rafique [2009] ScotSC 44 (19 November 2009)

SP Distribution Ltd v. Rafique [2009] ScotSC 44 (19 November 2009)

The express servitude right of access granted in 1966 did not include an implied right to excavate and construct a stairwell on the servient property. The existence of planning permission and alleged health and safety requirements did not justify the works in the absence of the servient owner's consent. The works exceeded the scope of the servitude and imposed an unacceptable burden not contemplated by the original grant.

Citation
[2009] ScotSC 44
Parties
Pursuers and Respondents: SP Distribution Limited; Defender and Appellant: Mr Mohammed Shabbaz Rafique
Jurisdiction
Scotland
Judgment Date
19 November 2009
Procedural Posture
Civil Appeal / Appeal Judgment
Outcome
Appeal allowed; decree of absolvitor granted to defender except as to undisputed crave 1.
Legal Topics
Servitude Rights, Implied Rights, Access to Property, Ancillary Rights, Civiliter Exercise of Servitude, Planning Permission Relevance
Property Law Servitudes and Easements Servitude Rights Implied Rights Access to Property Ancillary Rights Civiliter Exercise of Servitude Planning Permission Relevance

Case Brief

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Parties

SP Distribution Limited

Pursuers and Respondents

Mr Mohammed Shabbaz Rafique

Defender and Appellant

Procedural Posture

Civil Appeal / Appeal Judgment

Legal Issues

  1. 1 Whether the servitude right of access granted in 1966 included an implied right to excavate and construct a stairwell on the servient property
  2. 2 Whether planning permission or health and safety regulations justified the works carried out by the pursuers
  3. 3 Whether the works constituted a permissible exercise of the servitude right civiliter

Ratio Decidendi

The express servitude right of access granted in 1966 did not include an implied right to excavate and construct a stairwell on the servient property. The existence of planning permission and alleged health and safety requirements did not justify the works in the absence of the servient owner's consent. The works exceeded the scope of the servitude and imposed an unacceptable burden not contemplated by the original grant.

Court Disposition

Appeal allowed; decree of absolvitor granted to defender except as to undisputed crave 1.

Orders

  • Varied findings in fact and law as specified
  • Sustained the appeal