Decision 092/2025: Information regarding any servitude/prescriptive right by a named property to discharge sewage and surface water into Kirkurd Graveyard

Authority: Scottish Borders Council
Case Ref: 202400751
 

Summary

The Applicant asked the Authority for information on any servitude/prescriptive right relating to the discharge of sewage and surface water from a specified property through the Kirkurd Graveyard, and also for information relating to the sewage system in place at another specified property at the time of its sale in 1987.   The Authority gave the Applicant notice that it did not hold any information.  The Commissioner investigated and was satisfied that the Authority did not hold the information requested.

Relevant statutory provisions

Freedom of Information (Scotland) Act 2002 (FOISA) sections 1(1), (2) and (6) (General entitlement); 39(2) (Health, safety and environment); 47(1) and (2) (Application for decision by Commissioner).

The Environmental Information (Scotland) Regulations 2004 (the EIRs) regulations 2(1) (definition of “the Act”, “applicant” and “the Commissioner”) (Interpretation); 5(1) and 5(2) (Duty to make environmental information available on request); 10(1), (2) and (4)(a) (Exceptions from the duty to make environmental information available); 16(4) (Review by a Scottish public authority); (17(1), (2)(a), (b) and (f) (Enforcement and appeal provisions).

Background

1. On 5 January 2024, the Applicant made a request for information to the Authority.  She asked for:

   1. All evidential documentation that supports any servitude/prescriptive right as claimed, referenced and quoted by the Authority in a described Writ,

   “Mr & Mrs [name] as heritable proprietors of [named property 1] have a servitude right of drainage and outfall established by long negative prescription, prior to it being blocked, since 1960 or in any event in excess of twenty years”.

   b. The Authority to clarify and provide documentary evidence as to how, if the pipe had been blocked since 1960, per the Writ, [named property 1] had achieved a prescriptive right in excess of 20 years, and when the 20 year prescriptive period first commenced.

   c. Documentation between the Authority and the owners of [named property 1] or their agents that would have encouraged and swayed the Authority to raise action against the owners of the [named property 2] in respect of such a purported servitude/prescriptive right. 

   d. All documentation held by the Authority in relation to the registered sewage system in place at [named property 2] and as supplied to [named persons] at the point of sale by the forerunner to the Authority in 1987 or provided to the Authority by SEPA.   Supply the identifying documentation/materials/Title Deeds that sets out the right for [named property 1] to discharge their filth into [named property 2] via the Authority regulated Kirkurd Graveyard.  If there is nothing delineated within the Title Deeds for [named property 1] or [named property 2], please confirm.

2. The Authority responded on 14 March 2024.  It apologised for its late response explaining that it had been a time-consuming process checking records, particularly in relation to part (d) of the request, and informed the Applicant under regulation 10(4)(a) of the EIRs that it did not hold any information falling within parts (a), (b), (c) or (d) of her request.  It provided some explanation in relation to parts (a), (b) and (c) of the request and suggested that she contact the Registers of Scotland in relation to part (d).
3. On 23 March 2024, the Applicant wrote to the Authority requesting a review of its decision. The Applicant stated that she was dissatisfied with the decision because she considered that information was held in relation to parts (a), (b), (c) and (d) of her request.  She also commented on the lateness of the response and the reference to part (d) of her request, particularly as the response to this had consisted of two and a half lines of text recommending a referral to another Authority.
4. The Authority notified the Applicant of the outcome of its review on 25 April 2024. The Authority apologised for the delay in responding to the Applicant’s requirement for review.  It informed the Applicant that each point of her original request had been considered and confirmed that no further information was recorded and therefore it upheld its original response of 14 March 2024.
5. On 28 April 2024, the Applicant wrote to the Commissioner, applying for a decision in terms of section 47(1) of FOISA.  By virtue of regulation 17 of the EIRs, Part 4 of FOISA applies to the enforcement of the EIRs as it applies to the enforcement of FOISA, subject to specified modifications.  The Applicant stated she was dissatisfied with the outcome of the Authority’s review because she was not satisfied that the Authority did not hold any information falling within parts (a), (b), (c) and (d) of her request.   

Investigation

6. The Commissioner determined that the application complied with section 47(2) of FOISA and that he had the power to carry out an investigation.
7. On 17 July 2024, the Authority was notified in writing that the Applicant had made a valid application, and the case was allocated to an investigating officer.
8. Section 49(3)(a) of FOISA requires the Commissioner to give public authorities an opportunity to provide comments on an application. The Authority was invited to comment on this application and to answer specific questions.  These related to how it had determined that no information falling within the scope of the Applicant’s request was held.
9. The Applicant was also provided with the opportunity to make any further comments that she wished to the Commissioner, which she did.
10. Further submissions were received from the Authority at various points during the investigation.

Commissioner’s analysis and findings

11. The Commissioner has considered all of the submissions made to him by the Applicant and the Authority. 

Handling in terms of the EIRs

12. The Authority processed and responded to the Applicant’s request and requirement for review in accordance with the EIRs, having concluded that the information requested was environmental information as defined in regulation 2(1) of the EIRs
13. Where information falls within the scope of the definition “environmental information” in regulation 2(1) of the EIRs, a person has a right to access it (and the public authority a corresponding obligation to respond) under the EIRs, subject to various restrictions and exceptions contained within the EIRs.
14. The Applicant has not disputed the Authority’s decision to handle their request under the EIRs and the Commissioner is satisfied, in the circumstances, that the information requested by the Applicant falls within the definition of environmental information set out in regulation 2(1). 

Section 39(2) – Environmental information

15. The exemption in section 39(2) of FOISA provides, in effect, that environmental information (as defined by regulation 2(1) of the EIRs) is exempt from disclosure under FOISA, thereby allowing any such information to be considered solely in terms of the EIRs.
16. In this case, the Commissioner accepts that the Authority was entitled to apply the exemption to the information withheld under FOISA, given his conclusion that it is properly classified as environmental information.
17. As there is a statutory right of access to environmental information available to the Applicant in this case, the Commissioner accepts, in all the circumstances, that the public interest in maintaining this exemption (and responding to the request under the EIRs) outweighs any public interest in disclosing the information under FOISA.  Both regimes are intended to promote access to information and there would appear to be no reason why (in this particular case) disclosure of the information should be more likely under FOISA than under the EIRs.  
18. The Commissioner therefore concludes that the Authority was correct to apply section 39(2) of FOISA and consider the Applicant’s information request under the EIRs.
19. In the circumstances, the Commissioner will consider this case, in what follows, solely in terms of the EIRs. 

Regulation 5(1) of the EIRs – Duty to make environmental information available  

20. Regulation 5(1) of the EIRs (subject to the various qualifications contained in regulations 6 to 12) requires a Scottish public authority which holds environmental information to make it available when requested to do so by any applicant. This obligation relates to information that is held by the authority when it receives a request.
21. Under the EIRs, a public authority may refuse to make environmental information available if one of the exceptions in regulation 10 apply and, in all the circumstances of the case, the public interest in maintaining the exception or exceptions outweighs the public interest in making the information available
22. In this case, the Authority submitted that it was relying on the exception in regulation 10(4)(a) of the EIRs as it held no recorded information which would fulfil any part of the Applicant’s request.

Regulation 10(4)(a) – Information not held 

23. Regulation 10(4)(a) of the EIRs states that a Scottish public authority may refuse to make information available to the extent that it does not hold that information when it receives the request.
24. The standard of proof to determine whether a Scottish public authority holds the information is the civil standard of the balance of probabilities.  In determining where the balance lies, the Commissioner considers the scope, quality, thoroughness and results of the searches carried out by the public authority.
25. The Commissioner also considers, where appropriate, any reasons offered by the public authority to explain why it does not hold the information.  While it may be relevant as part of this exercise to explore expectations about what information the authority should hold, ultimately the Commissioner’s role is to determine what relevant information is (or was, at the time the request was received) held by the public authority. 

Background/context

26.  The request in this case asks about a servitude/prescriptive right.  A servitude or prescriptive right of access may be established in Scots law by continuous possession for 20 years, openly, peaceably and without judicial interruption. 

The Applicant’s submissions

27. The Applicant did not believe that Prescriptive Rights could be claimed on hearsay, but would have to be backed up by Witness Statements, Statements of Truth etc, or other documentation spanned over 20 years, all of which would be necessary to produce in court as evidence to prove their case.  She considered it would have been improbable and irresponsible for the Authority to take someone to court (the Writ discussed) on the basis of hearsay (in relation to the prescriptive right).
28.  The Applicant considered that as the Authority had claimed, and as she understood, it had raised (and abandoned) court action against the owners of [named property 2], for [named property 1] to discharge into and through Kirkurd Graveyard into [named property 2’s] private septic tank, the Authority would surely not have been so irrational as to have used public funds in this way unless it held supporting documentary evidence to support its action (such as information/documentation surrounding the sewage system in place at the time of the sale of [named property 2] in 1987 to its current owners).
29. The Applicant commented that the Authority had said that they did not hold any such documentation; however, she referred to a statement made in Minutes from a meeting of the Authority where a named employee had stated that the owners of [named property 1] had submitted to it that they had the right to use the pipe and the Authority had accepted this.  The Applicant therefore considered that as the Authority had used the phrase “had submitted to it” then she found it highly questionable that it did not hold anything. 

The Authority's submissions

30. The Authority provided evidence of the searches it had carried out, as well as explaining why (by its nature) it did not hold any information relating to the negative servitude/prescriptive right referred to in part (a) of the Applicant’s request. 

Request parts (a), (b) and (c)

31. The Authority explained that when a property acquires a right to use land by way of prescriptive right (in other words where the right has arisen because the use has been permitted over an extended period of time) then by its very nature there may be no paper trail to support the existence of that right. It stated that, instead the matter could be judged by considering the facts which were presented.  
32. It explained how it had come to its view that regarding the prescriptive right referred to in this request.  The Authority explained that its staff had seen the pipe in question and it was their professional assessment that the pipe that feeds from [named property 1] and through the Cemetery was a very old one and was clearly designed and located to allow water to flow from [named property 1] and along its route.
33. The Authority stated that the factual situation that arose was that there was a historical pipe which had been in place and capable of use for a period which would extend well beyond the prescriptive period, and that this gave rise to the presumption that there was a right to use the pipe and that there was no evidence that would enable that presumption to be rebutted.  It explained that in the absence of evidence that another party had actively disrupted the right to use the pipe or attempted to block the usage of that pipe during the prescriptive period, the Authority had to accept that the owner of [named property 1] had the right to use the pipe which traversed the Cemetery.    
34. The Authority, in relation to part (b) of the Applicant’s request did not make any further comment in addition to that already provided to the Applicant.  It had explained that the Writ had not said that the pipe had been blocked since 1960.  It noted that there were commas immediately before and after the words “prior to it being blocked”.  The Authority clarified that there had been a servitude right since 1960, or in any event in excess of 20 years, and that it then, by the use of the words in between the commas adds the detail that this was prior to it being blocked.   
35. It confirmed that it did not hold and had not seen any documentation held or produced by the owner of [named property 1] which would suggest the owners had a legal right to use the pipe.
36. The Authority explained that the word use of the words “submitted” or “submission” within the meeting Minute referred to by the Applicant were of no technical or legal significance, but rather to convey the position that had been intimated by the owners of [named property 1] regarding their right to use the pipe in the way they had.  It was not intended to suggest that there had been any formal written submission.

Request part (d)

37. In relation to part (d) of the Applicant’s request, the Authority explained that it understood the Applicant was looking for any information which might have been held relating to the sewage system for [named property 2] by Borders Regional Council (the forerunner to the Authority) at the point of sale of the property to its owners in 1987. 
38. It stated that there was no reason for it to continue to hold any such data relating to a transaction that was concluded over 35 years ago.
39. It advised that to ensure it had undertaken a thorough search, it had asked staff within its Legal and Property Sections to search to see if a copy of the title deeds from the 1987 sale were held.  Some information was located and provided to the Commissioner, but this did not fall within scope of the request.  Therefore, the Authority concluded that no such information was held.   

The Commissioner's view 

40. The Commissioner has carefully considered the submissions from both parties.  He would emphasise again that his role involves consideration of what, on the balance of probabilities, an authority actually holds at the time a request is received, as opposed to what an applicant may believe the authority should hold.
41. The Commissioner has considered the reasons given by the Authority for why information around a negative prescriptive right would not be held.  He agrees with the description of the nature of this.  As the name suggests, it rests on the absence of challenge, so the absence of information would therefore not be unexpected in the circumstances.
42. He has also considered the Applicant’s view of the meaning of the part of the Writ detailed in her request.  The Commissioner would agree with the Authority’s description of the meaning of this sentence, given the use of bracketing commas around the phrase “prior to it being blocked.”
43. The Commissioner is satisfied with the Authority’s description of how it came to its view regarding the pipe, the apparent age of the pipe and apparent purpose, and so its view on the prescriptive right having been in place for an excess of 20 years. It is not for the Commissioner to take a view on whether it would have prudent for the Authority to take statements etc. of the kind described by the Applicant, in contemplation of court proceedings: it does not appear to have done so and the Commissioner fails to see why, if it had such statements etc., it would be in the Authority’s interests to deny their existence.   
44. With regard to information relating to part (d) of the Applicant’s request, again the Commissioner accepts the Authority’s reasons for why it is unlikely that it would still hold information related to the sale of [named property 2].
45. The Commissioner has considered the searches carried out by the Authority and is satisfied that these were appropriate in the circumstances and, on balance, should have been able to identify information falling within the scope of the request, if it existed and was held.   
46. In all of the circumstances of the case, the Commissioner is satisfied that the Authority took adequate and proportionate steps to determine if it held information falling within scope of all parts of the Applicant’s request.  The Commissioner is satisfied, based on the submissions received from the Authority, that it does not (and did not, on receipt of the request) hold recorded information which would fulfil the Applicant’s request. The Authority was therefore entitled to rely on the exception in regulation 10(4)(a) of the EIRs, on the basis that it did not hold the information requested.  While that exception is subject to the public interest test, the Commissioner can see no conceivable public interest in requiring the disclosure of information which is not in fact held. 

Handling of the request

47. Regulation 16 of the EIRs states that, on receipt of a requirement to conduct a review, the authority shall review the matter and decide whether it has complied with the EIRs, within 20 working days (regulations 16(3) and (4)).
48. In its review outcome, the Authority apologised to the Applicant for its late response to both the request and request for review.
49. It is a matter of fact that the Authority failed to respond to the Applicant’s requirement for review within the timescale laid down by the EIRs.
50. The Commissioner must therefore find that the Authority failed to meet the requirement of regulation 16(4) of the EIRs.

Decision 

The Commissioner finds that the Authority partially complied with the Environmental Information (Scotland) Regulations 2004 (the EIRs) in responding to the information request made by the Applicant.

The Commissioner finds that the Authority was entitled to provide a response to the Applicant under regulation 10(4)(a) of the EIRs, stating that it did not hold any information which would fulfil the request.

However, the Authority failed to respond to the Applicant’s requirement for review within the timescale allowed under regulation 16(4) of the EIRs.

As the Authority has already provided an apology to the Applicant, the Commissioner does not require the Authority to take any action. 

Appeal

Should either the Applicant or the Authority wish to appeal against this decision, they have the right to appeal to the Court of Session on a point of law only. Any such appeal must be made within 42 days after the date of intimation of this decision.

Euan McCulloch 

Head of Enforcement 

24 April 2025