Aberdeen City Council v Wanchoo and Neumann v Hutchison

Aberdeen City Council v Wanchoo

Case Report: [2008] CSIH 6 A390/05
Scottish Courts Service Outer House decision, Inner House decision

Neumann v Hutchison

Court ref: 1st May 2008; A211/04
Scottish Courts Service decision.

Key points: Private servitude rights of access – use ‘as of right’ to establish right by prescription – objective test.

These two cases involved claims of private servitude rights of access, but they both discussed important issues for the law relating to public rights of way. In particular, there was discussion in both cases about what amounts to use ‘as of right’ in order to gain a prescriptive right. Both cases indicated that an objective test applied. The important thing is the nature, quality and frequency of the use. Occasional use might be explained as the landowner being helpful, but continued use for the prescriptive period may create a right of servitude by the user. This can only be displaced by evidence of permission or tolerance by the landowner.

The Neumann case explained that ‘tolerance’ in this context must amount to evidence of permission being granted by the landowner, not just his acquiescence, and in this respect, Scottish law is different from English law. Where there is persistent use, it requires a successful challenge by the landowner to prevent the acquisition of a servitude right. Persistence of use in face of an unsuccessful challenge is good evidence of use as of right.

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