By Joshua Hale and David Bone
Of the various technical and legal considerations involved in a wind farm development, or any proposed property development, appropriate access to the development site is critical.
A wind farm may comprise several parcels of land. Just because one parcel of land within a wind farm site enjoys access rights does not necessarily mean the developer can use that access right to reach other parts of the wind farm. A failure to appreciate the nuances of the law governing access in this context can jeopardise a project, and the case law is scattered with cautionary tales. Two recent cases raise important points about access for wind farm developers.
The first of these, Ruddiman v Hawthorne, concerns the limits of private rights of access. This case serves as an illustrative example of the application of the so-called "Irvine Knitters rule" that a private servitude right of access over a piece of land cannot be used simply as a "bridge" to access a separate neighbouring property.
The second case, known colloquially as the "Edinburgh Accies" case, warns against relying on local authorities' lists of adopted roads to identify the extent of a public road.
Ruddiman v Hawthorne – The background
A "servitude" is a private right over a piece of land (the "burdened property") for the benefit of another (the "benefitted/dominant property"). There are various types of servitude that can be created over land. A servitude right of access is a right to cross the burdened property in order to reach the benefitted property. It is a fundamental implied rule that the servitude must be for the benefit of the Benefitted Property only, not some third party land outside the Burdened-Benefitted Property relationship. In other words, the Benefitted Property cannot simply act as a "bridge". This rule derives from Roman Law but has become known simply as "the Irvine Knitters rule" set out in Irvine Knitters v North Ayrshire Co-operative Society 1978 SC109. This rule was the subject of contention in Ruddiman v Hawthorne.
Mr and Mrs Hawthorne had purchased a house in Aberdeen in 1990. The house came with some adjoining land. Shortly after their purchase, they decided they did not want to live in the house and sold the parts of the property coloured pink below (now owned by Ms. Ruddiman), together with the driveway to the house, but retained two contiguous parcels of land: "Site 1" coloured yellow situated to the east of the house and "Site 2" coloured orange situated to the west of the house.
The Hawthornes decided to build a new house on Site 1. In order to reach the new house, access was to be taken via the driveway owned entirely by Ms. Ruddiman, using a servitude right of access to Site 1 which had been retained in the disposition when the original house was sold. This was uncontroversial.
The Hawthornes later decided to also redevelop Site 2 and after several failed applications, eventually obtained conditional planning permission in 2012. However, Site 2 only benefitted from a pedestrian right of access through a small lane which was totally unsuitable for construction traffic. There were no independent vehicular rights of access to Site 2.
Ms. Ruddiman, who opposed the development of Site 2, was concerned that the Hawthornes would seek to use her driveway to allow development traffic to reach Site 2, and took the matter to court to prevent this from happening. The Hawthornes sought to have the case dismissed.
Both parties agreed on the applicable law from the outset; that set out in the Irvine Knitters case. This was that a benefitted/dominant property cannot act as a bridge to a neighbouring parcel of land outwith the benefitted/burdened property relationship. However, the Hawthornes argued that, provided the construction traffic remained parked on Site 1 and did not actually cross over to Site 2, there would be no breach of the Irvine Knitters rule. Lady Paton disagreed. It could be inferred, particularly from the repeated planning applications lodged by the Hawthornes for development of Site 2, that the true intention was to use Ms. Ruddiman's driveway for the purpose of developing Site 2, even if the vehicles did not immediately cross onto Site 2.
The Hawthornes reclaimed (appealed). The court upheld Lady Paton's decision:-
"…The use of a device, whereby a car park is created on the dominant tenement (Site 1) and to which the persons or goods would initially be going, does not alter matters. The dominant tenement would still be being used as a bridge to a non-dominant tenement. The question is: at the point when the persons or goods enter the driveway, are they destined in bona fide for the dominant tenement (Site 1) or a non-dominant tenement (eg Site 2)? If it is the latter, the use of the servitude is unlawful because it increases the burden on the servient tenement, whereby its owners are not merely allowing access across their land to the dominant tenement but to a third tenement beyond it and which has no equivalent right" (emphasis added).
The situation in this case can arise in a multi-owner wind farm development. If the owner of the first part of the proposed wind farm development (Property A) only has access to their ground via a servitude right of access to cross neighbouring ground, that is as much as they can pass on to the wind farm developer as a pertinent to a lease. The question is whether the developer can proceed from Property A to access the next part of the wind farm development (Property B) and so on to other parts. This case shows that the courts will look at the purpose for which access is being taken to the benefitted/dominant property, i.e. Property A. Even if traffic physically stops within Property A, if the true purpose of the traffic is ultimately to reach or serve the neighbouring Property B, this will likely breach the Irvine Knitters rule.
It is important to note that there is no breach of the Irvine Knitters rule where someone uses the servitude to access the benefitted Property A, in connection with a legitimate and genuine purpose on that benefitted property, before passing through to the additional land at Property B, provided there are substantially two separate journeys. This is one of the exceptions to the Irvine Knitters rule; where access is not taken straight from the access route into Property B but there is an intervening act of "processing or storage" on the benefitted land.. The developer would use the servitude to get to Property A and then perform some task there (e.g. erecting turbines) so that there is a break. Thereafter the developer would proceed to the adjoining ground, Property B, which is not part of the land which benefits from the servitude, to erect turbines there and so on with other parts of the wind farm development. The use of the servitude stops at the point this intervening activity occurs. This is sometimes known as the "separate journeys" exception.
This argument has not been specifically tested in a wind farm context and you can see that while this might work, if the developer at a later stage had to come in solely to replace a turbine blade on Property B, then it may well not work. Academics have proposed several considerations that might be used by the Courts to determine if there is a separate journey, for example the length of time between journeys, the mode of transport and the nature of the activities between each journey. In the Ruddiman case the Court decided that stopping on the car park was not a sufficient act to break the journey to Site 2. What is clear from Ruddiman and also from the Irvine Knitters case itself, is that the Courts will be alert to artificial expedients or "devices" intended to exaggerate a distinction between the two journeys. Such artificial devices will be discounted entirely.
The judge mentions another important rule of servitudes: that the benefitted proprietor cannot increase the burden imposed on the burdened property. This is usually conceptualised as a distinct rule from the Irvine Knitters rule but in the quoted paragraph above the Court seems to suggest that any breach of the Irvine Knitters rule is simply an instance of a breach of the rule against increasing the burden. The rule against increasing the burden is important in its own right. If a wind farm developer seeks to rely upon a servitude right of access that has previously only been used for farming traffic, would it be an unwarrantable increase in the burden if the route was then used for heavier wind farm traffic? While it is not the case that the burden must always remain what it has been in the past, exactly what the Courts might treat as being an unwarrantable increase is not clear and is ultimately a question of scale to be examined in the particular context. For expressly granted servitudes the warrantable burden is determined by reference to the constitutive deed and what was contemplated by the parties to the grant of servitude. For servitudes constituted by continued prescriptive use, the warrantable burden is determined by reference to the use that has previously been made of the servitude.
Even if he Court held that the Irvine Knitters rule was not being breached, one must assume that Ms. Ruddiman would run an alternative argument that the Hawthorne's intention to use her driveway for construction traffic would constitute an unwarrantable increase in the burden, going beyond what the parties had intended when the servitude was original created in the early 1990s.
This case serves as a helpful reminder that obtaining planning permission is only one part of the development jigsaw. Planning permission simply tells us there is no public interest reason to prevent development. It tells us nothing about the efficacy of the development itself or access to the site.
The Ruddiman v Hawthorne situation is far from unique. If construction has commenced on one parcel of a wind farm and planning permission is granted for a neighbouring parcel, will the existing servitude rights of access be sufficient to reach that neighbouring parcel? It is crucial any problems with access are identified from the outset through thorough title examination by experienced legal advisers and navigated accordingly. It may be necessary to obtain new express servitude rights which are capable of extending to all parts of the wind farm development.
This case raises important points about identifying the extent of road adoption near development sites; in other words, the question of where a public road ends and private land begins. It may surprise developers to learn that, according to this recent judgement, a local authority's own list of adopted roads is not determinative.
In an ideal scenario, a wind farm site would simply adjoin with the edge of a public road, foregoing the need for any private access rights over third party land. However, this is often not the case and the intervening land will be owned by a third party. The developer needs to cross this land to reach the development site, but if there are no adequate access rights already contained in the title, the developer will need to approach the third party landowner to buy these rights.
Obtaining rights over these so-called "ransom strips" can be expensive for developers, so it is crucial to identify from the outset if a development site can be accessed from a public road, whether directly or via a pre-existing access rights. Central to this is identifying the extent of road adoption, in other words, where the edge of the public road ends and private land begins.
Raeburn Place Development had earmarked a site on land belonging to Edinburgh Academical Rugby Club for retail development, with access to the site to be taken from the north end of Comely Bank Road over a strip of land which had, until recently, been occupied by a wall.
The wall had been built in 1912 when the statutory predecessors to the City Council had purchased the underlying ground as part of a road-widening scheme. In exchange they agreed to build the retaining wall on the land to provide protection for pedestrians from a drop onto the land to the north of the pavement, and to maintain it in all time coming. In the developer's opinion, the wall and now the ground beneath the wall were therefore adopted by the Council for maintenance as part of Comely Bank Road. Indeed, the Council's list of adopted roads specifically makes reference to the wall in its description of Comely Bank Road. It is therefore understandable why the developer concluded they could take access to their development site directly from Comely Bank Road, over the area that was once occupied by the wall.
However, a third party, Leafrealm Land Limited, claimed that it in fact owned the land beneath the wall. Among other points, they argued that the 1912 wall had inadvertently been built to the north of the land that the Council had purchased, and therefore the underlying ground had not been transferred to the Council in 1912 but had instead been retained by the sellers (and now by Leafrealm through a later transfer of this land). They concluded that the Council's road adoption did not extend to the ground beneath the wall.
The court ultimately found that the wall was part of the public road. Technical evidence was led and there were numerous factual and legal considerations which are not repeated here, but a key factor in the decision was that the wall was a retaining wall, functionally integral to the road ("road" here is taken to include the associated pavement) by protecting pedestrians from falling down the verge onto the playing fields. However, the fact that the wall was listed on the Council's website as forming part of the road was not, by itself, a determining factor.
While this case is currently undergoing appeal and must therefore be treated with a degree of caution, the fact that the Council's description of public roads is not determinative of the adopted extent may be of surprise to developers.
The case provides judicial support for applying a test of "functionality" to determine if a wall forms part of a road, provided it was necessary "in the sense of functionally integral to the integrity of the road (which includes an associated footway or pavement)".
Even with this new judicial guidance, the question of the extent of road adoption remains highly fact dependent and may require consideration of detailed technical advice before a developer can ultimately take a view.
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