An Army officer has lost a legal battle over a strip of land between two centuries-old houses in a seaside village.
Major Douglas Soulsby raised an action after neighbours in Elie in the East Neuk of Fife built an extension to their property.
He objected to planning permission for the extension amid concerns that it would prevent him from maintaining the western elevation of his property ‘Seven Gables’ in the village’s South Street, which is about 350 years old.
Major Soulsby, 46, went to the Court of Session in Edinburgh arguing that he had a right of access over the strip of ground between ‘Seven Gables’ and the neighbouring house – 400-year-old ‘Seafort’ – where a common passage ended to the sea wall.
Both houses sit beside the sea wall in Elie and a common passage runs between them, but it does not extend all the way from the street.
The major contended that Richard and Kirsten Jones, who bought Seafort in 2016, were not entitled to build on the strip and sought an order seeking removal of structures.
The company director and his wife, Mr and Mrs Jones of Harrogate, in Yorkshire, contested the action and a judge has now absolved them from proceedings.
Lady Carmichael heard evidence and submissions in the case earlier this year in which both parties were represented by senior and junior counsel and issued a 175-page judgement in which she held there was not a right of access.
The judge said: “I do not require in this process to determine what rights a proprietor such as the pursuer (Major Soulsby) may have regarding access to inspect, maintain or repair, or what may be the judicial character of any such rights.”
“I am asked only to determine whether or not he has a servitude right of access by virtue of necessity, and have concluded that he does not.
“No doubt in reality the vast majority of requests for access are met with co-operation and goodwill and/or enlightened self-interest in avoiding damage and personal injury from poorly maintained neighbouring properties.”
Inspecting, maintaining and repairing the western wall of ‘Seven Gables’ with the extension in place is possible, though more difficult.
Lady Carmichael said she was not satisfied that any nuisance had been created by the pounds 170,000 extension, or that any was likely to be created by it.
The judge said she was satisfied that it was possible to paint the whole of the western gable wall of ‘Seven Gables’ with the extension in place.
Lady Carmichael also said that she was not satisfied that the proximity of the buildings would prevent dampness drying out.
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