Reid, Kenneth

English

Edinburgh Research Explorer

     Edinburgh Research Explorer                                      Accessory Rights in ServitudesCitation for published version:Reid, K 2008, 'Accessory Rights in Servitudes', Edinburgh Law Review, vol. 12, pp. 455-49.https://doi.org/10.3366/E1364980908000711Digital Object Identifier (DOI):10.3366/E1364980908000711Link:Link to publication record in Edinburgh Research ExplorerDocument Version:Publisher's PDF, also known as Version of recordPublished In:Edinburgh Law ReviewPublisher Rights Statement:Copyright © 2013. Edinburgh University Press. Reid, K. (2008), Accessory rights in servitudes, Edinburgh LawReview, 12, pp.455-49. http://dx.doi.org/10.3366/E1364980908000711General rightsCopyright for the publications made accessible via the Edinburgh Research Explorer is retained by the author(s)and / or other copyright owners and it is a condition of accessing these publications that users recognise andabide by the legal requirements associated with these rights.Take down policyThe University of Edinburgh has made every reasonable effort to ensure that Edinburgh Research Explorercontent complies with UK legislation. If you believe that the public display of this file breaches copyright pleasecontact openaccess@ed.ac.uk providing details, and we will remove access to the work immediately andinvestigate your claim.Download date: 30. Nov. 2025Vol 12 2008 analysis 455may seem anomalous; if they were reclassified as subordinate real rights – involving,as servitudes do, a correlative position – they would become so open.27D L Carey MillerUniversity of AberdeenEdinLR Vol 12 pp 455-459DOI: 10.3366/E1364980908000711Accessory Rights in ServitudesWhen, in 1998, neighbours in Shetland quarrelled over parking rights, they cannothave imagined that the dispute would finish up, almost a decade later, in the Houseof Lords. In one sense, therefore, it is correct to characterise Moncrieff v Jamieson1as an “unfortunate case” with a “prolonged and highly regrettable history”.2 But thecase is also an example of “the life blood of the common law”3 because it raises, andlargely settles, the question of how accessory rights arise in the context of servitudes.Along the way, important things are said about the fixed list of servitudes, the rule thata servitude must not be repugnant with ownership, and the long-disputed question asto whether a servitude of parking is recognised in Scots (and English) law. Only theissue of accessory rights can be considered in this short note.4Moncrieff v Jamieson concerned a house owned by the pursuers which adjoinedthe sea and could be reached from the landward side only by a private road runningthrough the third defenders’ land.5 At one time both properties had belonged to thesame person, but the pursuers’ property was broken off by a disposition in 1973. Thisconferred “a right of access from the branch public road through Sandsound”. Dueto a steep fall in the land, it was not possible to take a car from the private road, overwhich access rights had been conferred, on to the pursuers’ property, and the roadwas too narrow for a vehicle to turn. Accordingly, the pursuers’ long-standing practicewas to use part of the defenders’ land for turning and parking. It was the defenders’challenge to that practice which sparked the current litigation, in which the pursuerssought declarator and interdict.27 Credit for this observation – not made in the context of Peart – is due to Professor George Gretton.1 [2007] UKHL 42, 2008 SC (HL) 1.2 Paras 19, 42 per Lord Hope.3 Para 66 per Lord Rodger.4 For commentary on the case, see: D Bartos, “Advance to free parking? – Moncrieff v Jamieson” (2007) 75SLG 203; R Paisley, “Clear view” (2007) 52 JLSS Dec/50; K G C Reid and G L Gretton, Conveyancing2007 (2008) 106; A Goymour, “Easements, servitudes and the right to park” (2008) 67 CLJ 20; M Hanley,“ Moncrieff v Jamieson: easements, exclusionary use and elusive principles” [2008] Conv 144.5 However, since the case was before the sheriff a new public road has in fact been built to within metresof the pursuers’ property, with a turning circle at its terminus.456 the edinburgh law review Vol 12 2008In the end, the dispute between the parties was a narrow one. It was acceptedthat the pursuers had a servitude of way over the road. It was further accepted thatsuch a servitude was capable of carrying, by implication, certain accessory rights, andthat those rights included, in the present case, a right to use the defenders’ land toload and unload and to turn. But what was disputed was whether there was also anaccessory right to park. At first instance, the sheriff held that there was such a rightand granted decree in favour of the pursuers,6 and in 2005 this was affirmed by anExtra Division of the Court of Session (Lord Hamilton dissenting).7 Now the Houseof Lords has come to the same conclusion, although with more hesitation than mightbe indicated by a decision which, in the end, was reached unanimously.8A. DOCTRINAL ATTRIBUTIONIn deciding whether parking was included within the bare grant of a “right of access”,the House of Lords had first to determine the basis on which accessory rights can beimplied – a subject on which previous authority was sparse and inconclusive.9 Withthe exception of Lord Rodger, who favoured a more stringent test,10 their Lordshipswere in agreement that an accessory right would be recognised if it was reasonablynecessary for the use and enjoyment of the servitude.11 As for doctrinal attribution,the court seems to have viewed the right as an implied term of the original grant ofservitude. Lord Neuberger indeed is explicit on this point,12 treating the rule as anexample ofa general and well established principle which applies to contracts, whether relating togrants of land or other arrangements. That principle is that the law will imply a term into acontract, where, in the light of the terms of the contract and the facts known to the partiesat the time of the contract, such a term would have been regarded as reasonably necessaryor obvious to the parties.Although a natural approach to take, this was not, however, an inevitable one. Thefact that a right is “implied” does not require that it be implied as a term of a contract.The law can also imply rights by way of freestanding rules. The difference matters. Inthe context of accessory rights in servitudes, a freestanding rule asks what, today, isreasonably necessary for the use and enjoyment of the servitude, whereas a rule tied6 2004 SCLR 135, discussed in K G C Reid and G L Gretton, Conveyancing 2003 (2004) 68.7 [2005] CSIH 14, 2005 SC 281, discussed in K G C Reid and G L Gretton, Conveyancing 2005 (2006)93.8 [2007] UKHL 42, 2007 SLT 989.9 See D J Cusine and R R M Paisley, Servitudes and Rights of Way (1998) paras 12.124-12.127.10 Namely that the right should be essential to the effective operation of the servitude: see paras 82, 86.11 Para 110 per Lord Neuberger. In different words but to similar effect, Lord Hope said, at para 29,that accessory rights were implied if they are “necessary for the convenient and comfortable use andenjoyment of the servitude”.12 Para 113.Vol 12 2008 analysis 457to implied terms asks “what the parties must, if they had thought about it, have had inmind” as being reasonably necessary.13 The former is a rule rooted in legal policy, thelatter in the presumed intention of the parties at the time of the original grant.14 It isnot to be supposed that the House of Lords made a choice between these alternatives,because there is no indication that the possibility of a freestanding rule was canvassedin argument. Nevertheless, there is nothing surprising in the favour shown to animplied terms analysis. It is consistent with the standard view of implied servitudes15as an implied term of the disposition which effects the severance of one propertyfrom another, and it is consistent too with what has been described in England as agrowing judicial tendency “to rest the right to an easement on supposed intention ofthe parties to the contract”.16Yet it is hard not to have misgivings about the result. Whatever its merits in thefield of contract law, where it is a familiar presence, the doctrine of implied termsmakes an awkward fit with the law of real rights. In the first place, servitudes, unlikecontracts, bind third parties and affect successors, both of whom may be remote fromthe creation of the right. In the case of a servitude granted in, say, 1808, who is to saywhat circumstances surrounded its creation or what the parties might or might nothave intended? And as matter of legal policy, why should it matter?Secondly, a complicating factor, not present in contracts, is the principle that agranter is not to derogate from his grant. Arguably, its effect must be to restrictor exclude accessory rights in every case where the deed creating a servitude doesso by reservation rather than by grant; for non-derogation means that there can beno “intention” to withhold rights from the grantee except by express words. As ithappens, the servitude in Moncrieff was the subject of an express grant. If, instead,the servitude had been reserved from the 1973 disposition – if, in other words, it hadbeen constituted in favour of the granter of the deed and not the grantee – the resultof the case might have been different.Thirdly, parties can only “intend” something which they can foresee – somethingwhich, as Lord Hope put it, “may be considered to have been in contemplation at thetime of the grant, having regard to what the dominant proprietor might reasonably beexpected to do in the exercise of his right to convenient and comfortable use of theproperty”.17 But if accessory rights are tied to the intention of the original parties – ofthe parties of 1808 – they cannot readily encompass changes in the use of the propertyor in the general neighbourhood, let alone changes in society and in technology. Therights are historically determined.13 Para 52 per Lord Scott. See also Lord Hope at para 30.14 See Law Commission, Consultation Paper on Easements, Covenants and Profits à prendre (Law ComNo 186, 2008) para 4.133.15 As opposed to implied terms of servitudes otherwise created.16 J Gaunt and P Morgan, Gale on Easements, 17th edn (2002) para 3-120. And see also Law Commission,Consultation Paper on Easements (n 14) para 4.123, where the passage from Gale is quoted.17 Para 30.458 the edinburgh law review Vol 12 2008Finally, a theory built on the intention of the parties can only apply to servitudescreated by juridical act. The question of accessory rights for prescriptive servitudesthus remains unexplained and unexplored.Each of these difficulties would be avoided if the idea of an implied term werereplaced by a freestanding rule. The question would then become what is reasonablynecessary for the enjoyment of the servitude and not what the parties are thought tohave regarded as being necessary at the time when the servitude was first created. Acontemporary test would replace a historical one.B. LAW FROM OVER THE BORDERThe rule for accessory rights introduced in Moncrieff has its origins in Englishcase law.18 After expounding that case law, Lord Neuberger sought to justify itsapplication to Scotland by an argument which would have been familiar to hisVictorian predecessors:19It would be surprising if that were not the law in Scotland. It accords with good sense, andit is a point on which one would not expect Scots and English law to differ. While someaspects of the juridical nature, origin and incidents of servitudes in Scotland are differentfrom those of easements in England and Wales, there are many aspects of similarity . . .Some will take issue with the way in which this thought is expressed, but the thoughtitself seems broadly correct. The law of servitudes is indeed often close to the law ofeasements, and there is much to be learned in Scotland from the much larger caselaw generated in England.20 If the rule on accessory rights applied in Moncrieff is lawfrom over the border, as indeed is the law on implied servitudes as a whole,21 it isnone the worse for that. And if the rule is a poor one, as suggested above, it is a poorrule for England as well. The objection concerns quality and not provenance.Finally, it should be emphasised that, while the law of servitudes is similar tothe law of easements, it is by no means identical. For that reason among othersit might be expected that a judgment in a Scottish appeal would employ Scottishlegal terminology, make use of Scottish case law, and, except where a comparative18 See in particular Jones v Pritchard [1908] 1 Ch 630; Pwllbach Colliery Co Ltd v Woodman [1915] AC634. In the second of these cases, Lord Atkinson said (at 643): “From these authorities it is, I think,clear that what must be implied is, not a grant of what is convenient, or what is usual, or what is commonin the district, or what is simply reasonable, but what is necessary for the use and enjoyment, in the waycontemplated by the parties, of the thing or right granted.”19 Para 111. For those predecessors, see A Dewar Gibb, Law From Over the Border (1950) 57 ff; T BSmith, British Justice: The Scottish Contribution (1961) 83-89. Dewar Gibb’s tart comment (57) is that“The convenience of this device, so economical of inquiry, is obvious.”20 Lord Neuberger’s views may be compared with those of Lord Hamilton in the Inner House, who said(2005 SC 281 at para 79) that: “[A]lthough passing reference was made to certain authorities fromEngland, I have not found these cases of assistance in determining the content of Scots law or inapplying it to the circumstances of the case.”21 Implied servitudes were introduced to Scotland by the decision of the House of Lords in Cochrane vEwart (1861) 4 Macq 117. This followed Pyer v Carter (1857) 1 H & N 916.Vol 12 2008 analysis 459point is being made, expound the law of Scotland. Unhappily, that expectation is notsufficiently met in Lord Scott’s speech in Moncrieff.Kenneth G C ReidUniversity of EdinburghEdinLR Vol 12 pp 459-463DOI: 10.3366/E1364980908000723Calling Up TrumpsTrouble is brewing on the Menie Estate. The scenic coastal area is the site of aproposed billion-pound development by the American tycoon and golf enthusiast,Donald Trump.1 Planning permission for Mr Trump’s development initially seemedcertain. However, on 29 November 2007 the Aberdeenshire Infrastructure ServicesCommittee (AISC), by the casting vote of its chairman, refused the application.Aberdeenshire residents and councillors who supported the development werevoluble in their criticism. Mr Trump, in response, claimed Scotland was closed forbusiness and indicated that he would not be appealing the decision.Enter the Scottish Government. Alex Salmond, the local MSP as well as the FirstMinister, met with Mr Trump’s development team on 3 December, who then metthe Scottish Government’s Chief Planner Jim McKinnon on 4 December to discussoptions. Immediately following the meeting with Mr Trump’s team, Mr McKinnonadvised the Cabinet Secretary for Finance and Sustainable Growth, John Swinney,that the application should be called in for his personal consideration as actingPlanning Minister.2 Mr Swinney duly did so.The decision to call in the application has been the subject of inquiry by theLocal Government and Communities Committee (the Committee).3 Four meetingsheard evidence from, among others, Messrs Swinney, Salmond, McKinnon andMr Trump’s team. From the Committee minutes it is clear that the call-in wasmade for two express reasons: first, that the proposed development raised issuesof importance which required scrutiny at a national level, and secondly, to restoreconfidence and certainty to the planning system. Although not expressly recognised,a third reason appears to be Mr Trump’s flat-out refusal to appeal the AISC’s decision.The three reasons are discussed in turn.1 For full details of the development, see www.trumpgolfscotland.com/html/frameset.html.2 The Minister for Transport, Infrastructure and Climate Change, Stewart Stevenson, would ordinarilyhave dealt with the application. Responsibility was handed to Mr Swinney because Mr Stevenson, asMSP for a neighbouring constituency, could have had conflicting interests.3 It has also been the subject of numerous freedom of information requests: see www.scotland.gov.uk/Publications/1997/03/17133808/0.

Accessory Rights in Servitudes

     Edinburgh Research Explorer                                      Accessory Rights in ServitudesCitation for published version:Reid, K 2008, 'Accessory Rights in Servitudes' Edinburgh Law Review, vol 12, pp. 455-49.,10.3366/E1364980908000711Digital Object Identifier (DOI):10.3366/E1364980908000711Link:Link to publication record in Edinburgh Research ExplorerDocument Version:Publisher final version (usually the publisher pdf)Published In:Edinburgh Law ReviewPublisher Rights Statement:Copyright © 2013. Edinburgh University Press. Reid, K. (2008), Accessory rights in servitudes, Edinburgh LawReview, 12, pp.455-49. http://dx.doi.org/10.3366/E1364980908000711General rightsCopyright for the publications made accessible via the Edinburgh Research Explorer is retained by the author(s)and / or other copyright owners and it is a condition of accessing these publications that users recognise andabide by the legal requirements associated with these rights.Take down policyThe University of Edinburgh has made every reasonable effort to ensure that Edinburgh Research Explorercontent complies with UK legislation. If you believe that the public display of this file breaches copyright pleasecontact openaccess@ed.ac.uk providing details, and we will remove access to the work immediately andinvestigate your claim.Download date: 20. Feb. 2015Vol 12 2008 analysis 455may seem anomalous; if they were reclassified as subordinate real rights – involving,as servitudes do, a correlative position – they would become so open.27D L Carey MillerUniversity of AberdeenEdinLR Vol 12 pp 455-459DOI: 10.3366/E1364980908000711Accessory Rights in ServitudesWhen, in 1998, neighbours in Shetland quarrelled over parking rights, they cannothave imagined that the dispute would finish up, almost a decade later, in the Houseof Lords. In one sense, therefore, it is correct to characterise Moncrieff v Jamieson1as an “unfortunate case” with a “prolonged and highly regrettable history”.2 But thecase is also an example of “the life blood of the common law”3 because it raises, andlargely settles, the question of how accessory rights arise in the context of servitudes.Along the way, important things are said about the fixed list of servitudes, the rule thata servitude must not be repugnant with ownership, and the long-disputed question asto whether a servitude of parking is recognised in Scots (and English) law. Only theissue of accessory rights can be considered in this short note.4Moncrieff v Jamieson concerned a house owned by the pursuers which adjoinedthe sea and could be reached from the landward side only by a private road runningthrough the third defenders’ land.5 At one time both properties had belonged to thesame person, but the pursuers’ property was broken off by a disposition in 1973. Thisconferred “a right of access from the branch public road through Sandsound”. Dueto a steep fall in the land, it was not possible to take a car from the private road, overwhich access rights had been conferred, on to the pursuers’ property, and the roadwas too narrow for a vehicle to turn. Accordingly, the pursuers’ long-standing practicewas to use part of the defenders’ land for turning and parking. It was the defenders’challenge to that practice which sparked the current litigation, in which the pursuerssought declarator and interdict.27 Credit for this observation – not made in the context of Peart – is due to Professor George Gretton.1 [2007] UKHL 42, 2008 SC (HL) 1.2 Paras 19, 42 per Lord Hope.3 Para 66 per Lord Rodger.4 For commentary on the case, see: D Bartos, “Advance to free parking? –Moncrieff v Jamieson” (2007) 75SLG 203; R Paisley, “Clear view” (2007) 52 JLSS Dec/50; K G C Reid and G L Gretton, Conveyancing2007 (2008) 106; A Goymour, “Easements, servitudes and the right to park” (2008) 67 CLJ 20; MHanley,“ Moncrieff v Jamieson: easements, exclusionary use and elusive principles” [2008] Conv 144.5 However, since the case was before the sheriff a new public road has in fact been built to within metresof the pursuers’ property, with a turning circle at its terminus.456 the edinburgh law review Vol 12 2008In the end, the dispute between the parties was a narrow one. It was acceptedthat the pursuers had a servitude of way over the road. It was further accepted thatsuch a servitude was capable of carrying, by implication, certain accessory rights, andthat those rights included, in the present case, a right to use the defenders’ land toload and unload and to turn. But what was disputed was whether there was also anaccessory right to park. At first instance, the sheriff held that there was such a rightand granted decree in favour of the pursuers,6 and in 2005 this was affirmed by anExtra Division of the Court of Session (Lord Hamilton dissenting).7 Now the Houseof Lords has come to the same conclusion, although with more hesitation than mightbe indicated by a decision which, in the end, was reached unanimously.8A. DOCTRINAL ATTRIBUTIONIn deciding whether parking was included within the bare grant of a “right of access”,the House of Lords had first to determine the basis on which accessory rights can beimplied – a subject on which previous authority was sparse and inconclusive.9 Withthe exception of Lord Rodger, who favoured a more stringent test,10 their Lordshipswere in agreement that an accessory right would be recognised if it was reasonablynecessary for the use and enjoyment of the servitude.11 As for doctrinal attribution,the court seems to have viewed the right as an implied term of the original grant ofservitude. Lord Neuberger indeed is explicit on this point,12 treating the rule as anexample ofa general and well established principle which applies to contracts, whether relating togrants of land or other arrangements. That principle is that the law will imply a term into acontract, where, in the light of the terms of the contract and the facts known to the partiesat the time of the contract, such a term would have been regarded as reasonably necessaryor obvious to the parties.Although a natural approach to take, this was not, however, an inevitable one. Thefact that a right is “implied” does not require that it be implied as a term of a contract.The law can also imply rights by way of freestanding rules. The difference matters. Inthe context of accessory rights in servitudes, a freestanding rule asks what, today, isreasonably necessary for the use and enjoyment of the servitude, whereas a rule tied6 2004 SCLR 135, discussed in K G C Reid and G L Gretton, Conveyancing 2003 (2004) 68.7 [2005] CSIH 14, 2005 SC 281, discussed in K G C Reid and G L Gretton, Conveyancing 2005 (2006)93.8 [2007] UKHL 42, 2007 SLT 989.9 See D J Cusine and R R M Paisley, Servitudes and Rights of Way (1998) paras 12.124-12.127.10 Namely that the right should be essential to the effective operation of the servitude: see paras 82, 86.11 Para 110 per Lord Neuberger. In different words but to similar effect, Lord Hope said, at para 29,that accessory rights were implied if they are “necessary for the convenient and comfortable use andenjoyment of the servitude”.12 Para 113.Vol 12 2008 analysis 457to implied terms asks “what the parties must, if they had thought about it, have had inmind” as being reasonably necessary.13 The former is a rule rooted in legal policy, thelatter in the presumed intention of the parties at the time of the original grant.14 It isnot to be supposed that the House of Lords made a choice between these alternatives,because there is no indication that the possibility of a freestanding rule was canvassedin argument. Nevertheless, there is nothing surprising in the favour shown to animplied terms analysis. It is consistent with the standard view of implied servitudes15as an implied term of the disposition which effects the severance of one propertyfrom another, and it is consistent too with what has been described in England as agrowing judicial tendency “to rest the right to an easement on supposed intention ofthe parties to the contract”.16Yet it is hard not to have misgivings about the result. Whatever its merits in thefield of contract law, where it is a familiar presence, the doctrine of implied termsmakes an awkward fit with the law of real rights. In the first place, servitudes, unlikecontracts, bind third parties and affect successors, both of whom may be remote fromthe creation of the right. In the case of a servitude granted in, say, 1808, who is to saywhat circumstances surrounded its creation or what the parties might or might nothave intended? And as matter of legal policy, why should it matter?Secondly, a complicating factor, not present in contracts, is the principle that agranter is not to derogate from his grant. Arguably, its effect must be to restrictor exclude accessory rights in every case where the deed creating a servitude doesso by reservation rather than by grant; for non-derogation means that there can beno “intention” to withhold rights from the grantee except by express words. As ithappens, the servitude in Moncrieff was the subject of an express grant. If, instead,the servitude had been reserved from the 1973 disposition – if, in other words, it hadbeen constituted in favour of the granter of the deed and not the grantee – the resultof the case might have been different.Thirdly, parties can only “intend” something which they can foresee – somethingwhich, as Lord Hope put it, “may be considered to have been in contemplation at thetime of the grant, having regard to what the dominant proprietor might reasonably beexpected to do in the exercise of his right to convenient and comfortable use of theproperty”.17 But if accessory rights are tied to the intention of the original parties – ofthe parties of 1808 – they cannot readily encompass changes in the use of the propertyor in the general neighbourhood, let alone changes in society and in technology. Therights are historically determined.13 Para 52 per Lord Scott. See also Lord Hope at para 30.14 See Law Commission, Consultation Paper on Easements, Covenants and Profits à prendre (Law ComNo 186, 2008) para 4.133.15 As opposed to implied terms of servitudes otherwise created.16 J Gaunt and P Morgan,Gale on Easements, 17th edn (2002) para 3-120. And see also Law Commission,Consultation Paper on Easements (n 14) para 4.123, where the passage from Gale is quoted.17 Para 30.458 the edinburgh law review Vol 12 2008Finally, a theory built on the intention of the parties can only apply to servitudescreated by juridical act. The question of accessory rights for prescriptive servitudesthus remains unexplained and unexplored.Each of these difficulties would be avoided if the idea of an implied term werereplaced by a freestanding rule. The question would then become what is reasonablynecessary for the enjoyment of the servitude and not what the parties are thought tohave regarded as being necessary at the time when the servitude was first created. Acontemporary test would replace a historical one.B. LAW FROM OVER THE BORDERThe rule for accessory rights introduced in Moncrieff has its origins in Englishcase law.18 After expounding that case law, Lord Neuberger sought to justify itsapplication to Scotland by an argument which would have been familiar to hisVictorian predecessors:19It would be surprising if that were not the law in Scotland. It accords with good sense, andit is a point on which one would not expect Scots and English law to differ. While someaspects of the juridical nature, origin and incidents of servitudes in Scotland are differentfrom those of easements in England and Wales, there are many aspects of similarity . . .Some will take issue with the way in which this thought is expressed, but the thoughtitself seems broadly correct. The law of servitudes is indeed often close to the law ofeasements, and there is much to be learned in Scotland from the much larger caselaw generated in England.20 If the rule on accessory rights applied inMoncrieff is lawfrom over the border, as indeed is the law on implied servitudes as a whole,21 it isnone the worse for that. And if the rule is a poor one, as suggested above, it is a poorrule for England as well. The objection concerns quality and not provenance.Finally, it should be emphasised that, while the law of servitudes is similar tothe law of easements, it is by no means identical. For that reason among othersit might be expected that a judgment in a Scottish appeal would employ Scottishlegal terminology, make use of Scottish case law, and, except where a comparative18 See in particular Jones v Pritchard [1908] 1 Ch 630; Pwllbach Colliery Co Ltd v Woodman [1915] AC634. In the second of these cases, Lord Atkinson said (at 643): “From these authorities it is, I think,clear that what must be implied is, not a grant of what is convenient, or what is usual, or what is commonin the district, or what is simply reasonable, but what is necessary for the use and enjoyment, in the waycontemplated by the parties, of the thing or right granted.”19 Para 111. For those predecessors, see A Dewar Gibb, Law From Over the Border (1950) 57 ff; T BSmith, British Justice: The Scottish Contribution (1961) 83-89. Dewar Gibb’s tart comment (57) is that“The convenience of this device, so economical of inquiry, is obvious.”20 Lord Neuberger’s views may be compared with those of Lord Hamilton in the Inner House, who said(2005 SC 281 at para 79) that: “[A]lthough passing reference was made to certain authorities fromEngland, I have not found these cases of assistance in determining the content of Scots law or inapplying it to the circumstances of the case.”21 Implied servitudes were introduced to Scotland by the decision of the House of Lords in Cochrane vEwart (1861) 4 Macq 117. This followed Pyer v Carter (1857) 1 H & N 916.Vol 12 2008 analysis 459point is being made, expound the law of Scotland. Unhappily, that expectation is notsufficiently met in Lord Scott’s speech in Moncrieff.Kenneth G C ReidUniversity of EdinburghEdinLR Vol 12 pp 459-463DOI: 10.3366/E1364980908000723Calling Up TrumpsTrouble is brewing on the Menie Estate. The scenic coastal area is the site of aproposed billion-pound development by the American tycoon and golf enthusiast,Donald Trump.1 Planning permission for Mr Trump’s development initially seemedcertain. However, on 29 November 2007 the Aberdeenshire Infrastructure ServicesCommittee (AISC), by the casting vote of its chairman, refused the application.Aberdeenshire residents and councillors who supported the development werevoluble in their criticism. Mr Trump, in response, claimed Scotland was closed forbusiness and indicated that he would not be appealing the decision.Enter the Scottish Government. Alex Salmond, the local MSP as well as the FirstMinister, met with Mr Trump’s development team on 3 December, who then metthe Scottish Government’s Chief Planner Jim McKinnon on 4 December to discussoptions. Immediately following the meeting with Mr Trump’s team, Mr McKinnonadvised the Cabinet Secretary for Finance and Sustainable Growth, John Swinney,that the application should be called in for his personal consideration as actingPlanning Minister.2 Mr Swinney duly did so.The decision to call in the application has been the subject of inquiry by theLocal Government and Communities Committee (the Committee).3 Four meetingsheard evidence from, among others, Messrs Swinney, Salmond, McKinnon andMr Trump’s team. From the Committee minutes it is clear that the call-in wasmade for two express reasons: first, that the proposed development raised issuesof importance which required scrutiny at a national level, and secondly, to restoreconfidence and certainty to the planning system. Although not expressly recognised,a third reason appears to be Mr Trump’s flat-out refusal to appeal the AISC’s decision.The three reasons are discussed in turn.1 For full details of the development, see www.trumpgolfscotland.com/html/frameset.html.2 The Minister for Transport, Infrastructure and Climate Change, Stewart Stevenson, would ordinarilyhave dealt with the application. Responsibility was handed to Mr Swinney because Mr Stevenson, asMSP for a neighbouring constituency, could have had conflicting interests.3 It has also been the subject of numerous freedom of information requests: see www.scotland.gov.uk/Publications/1997/03/17133808/0.

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Accessory Rights in Servitudes

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