In the Ruddiman case, the pursuer sought a declarator from the Court that the right of access was restricted to one for the benefit of the owners of the dominant tenement (described as Site 1 in the decision) and was only to be exercised by them as was necessary for the access of that site. Interdict was also sought to prevent the defenders from using the servitude to access a separate site (described as Site 2 in the decision).
The defenders had made various applications for planning permission for Site 2 which relied on taking access over the driveway on the servient tenement. The pursuer argued she was reasonably apprehensive that the defenders were planning to develop Site 2 and use the driveway as an access to it through Site 1. She argued that development could only take place if there was access and egress using the driveway. The defenders sought to resist the action on the basis that there was no existing planning permission, although it was accepted that they intended to develop Site 2 for residential purposes. They also argued that they were entitled to take access over the driveway for access to Site 1, and then move from Site 1 to Site 2.
The Judge at first instance observed that the established principle from case law (Irvine Knitters v North Ayrshire Co-op 1978 SC 109) was that the dominant tenement cannot increase the burden upon a servient tenement, and in particular, communicate the benefit of a servitude to a non-dominant tenement (i.e. allow access to a property which does not benefit from the servitude). The site had no obvious access route for the purposes of construction other than by using the driveway. It could therefore be inferred that the defenders proposed to use the driveway to form a bridge from the driveway to Site 2.
The defenders appealed to the Inner House of the Court of Session. The Inner House held that the use of the driveway to access a car park built on Site 1, with a view to onward travel to Site 2 was excessive and therefore unlawful use of a servitude right of access.
With reference to the Irvine Knitters case, it was held that the dominant tenement cannot be used as a bridge over which persons could pass across the servient tenement with the intention of going somewhere other than the dominant tenement. Therefore the use of the driveway to access Site 2 was not permitted. This would increase the burden on the servient tenement. The appeal was therefore refused, and the case is due to go to an evidential hearing (proof).
