Words and pictures – of planning disputes and servitudes of shop frontage

For a long time J.A. Mactaggart v Roemmele 1907 SC 1318 has held a special place in the affections of law students, not just because it contains the ever-fascinating subject of real burdens and personal bar (a perennial student favourite), but lurking in the case report is something unusual: a picture.  This picture is a map (opposite p 1318 for the enthusiasts among Scots Law News readers) identifying the various properties referred to in the case.  The map aids the understanding of the case but seems to have been a one-off experiment for virtually a century.  However, the use of the internet for the publication of judgments has seen at least one judge recently further the cause for pictures among the words of the decisions.

This month an Extra Division decided a planning case, Bellway (Scotland) Ltd v Stirling Council [2008] CSIH42, where local developers were challenging the zoning of an area in the local plan.  The opinion of the court was delivered by Lord Carloway who at para 7, 8, 16, and 19 reproduces plans from the Local Plan to illustrate some of the factual background – the changes in the plan during the consultation process – and explain some of the arguments put to the court. 

Later in the month Lord Carloway decided a property dispute relating to 203 – 5, and 209 – 13 Buchanan Street, Glasgow in the Outer House in Romano v Standard Commercial Property Securities Ltd [2008] CSOH 105.  The case involves a tenement property where (as was common, but misguided) the external walls of a property were co-owned by all flat owners and every owner was prohibited from erecting business signs.  Some years after the original prohibition in 1962 one owner allowed another to erect a shop front on the wall and purported to grant a servitude to that effect – and signage was found in front of the property.  The pursuer sought a declarator of servitude of the right to attach a shop frontage.  The defenders argued that such a right was not in the usual fixed list of servitudes (e.g. the sheriff court case of Mendelssohn v The Wee Pub Co Ltd 1991 GWD 26-1518 (not Meldelssohn as quoted at para 13 of Lord Carloway's opinion) had held there was no servitude right to erect a signpost, although the pursuer noted this was contrary to Cunningham v Stewart (1888) 4 Sh Ct Rep 255 – ignoring the doubts Sheriff Cusine and Professor Paisley attach to this decision in Servitudes and Rights of Way (1998) para 3.22, n 17); and any servitude could not be granted by one co-owner of a property without the assent of the other co-owners.

In reaching his decision Lord Carloway gives useful judical support to the rationale behind the closed common law fixed list of servitudes (at para 23),

"The critical feature of servitudes, as distinct from other real rights, within the feudal system of tenure as existed at the time of the relevant conveyances and related deeds is that they could be constituted without being referred to in any writing (cf s 75 of the Title Conditions (Scotland) Act 2003 (asp 9)). They derive from the Roman Law as interpreted by the Institutional Writers and applied over time by the Courts. Because they do not necessarily appear in title deeds, a prudent principle developed whereby, in order to be constituted, they had to be of a known type."

And Lord Carloway upholds the reasoning of Sheriff Poole in Mendelssohn in his opinion at para 26 where he quotes the sheriff

"Shop signs would seem to have been known in classical times. They were certainly known in the Old Town of Edinburgh where [the close] is situated and are, I think, no new response to the needs of a changing society. I have concluded that had such a servitude right existed, as is claimed by the defender[s] in this case, it would have been recognised by the authorities centuries ago". [The existence of shop signs in classical times is of course evident from perusal of the historical pictorial records of Goscinny and Uderzo].

and at para 28 disagrees with the suggestion of Lord Scott in Moncrieff v Jamieson 2008 SC (HL) 1, "that any right of limited use may be capable of being created as "a servitudal right in rem" (para 47). "

Having effectively reached a conclusion to the case Lord Carloway goes on to consider an argument based on positive prescription and in this makes reference to plans and photographs which illustrate his decision.  A plan at para 1 indicates the layout of the relevant flats; and photographs at paras 6 and 9 indicate the shop fronts during the 1980s and 1990s.  These photographs make clear that there was no prescriptive possession of a shop front for the basement property in the 1980s and 1990s and accordingly "any case based upon the assertion of a prescriptive servitude right to use that part of the external wall as a shop front for the basement is doomed to failure. " (para 31).

The use of plans and photographs in judicial opinions – when these plans and photographs were submitted in evidence and helpful to the court in reaching a final decision – is a welcome one – and we at Scots Law News trust that Lord Carloway's pioneering work is adopted elsewhere on the bench.