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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Canmore Housing Association Ltd v. Bairnsfather (t/a BR Autos) [2004] ScotCS 1 (07 January 2004) URL: http://www.bailii.org/scot/cases/ScotCS/2004/1.html Cite as: [2004] ScotCS 1 |
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OUTER HOUSE, COURT OF SESSION |
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OPINION OF LORD McCLUSKEY in the petition of CANMORE HOUSING ASSOCIATION LIMITED Petitioners; against BRUCE BAIRNSFATHER trading as B. R. AUTOS Respondent:
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Petitioners: Ross; Biggart Baillie
Respondent: Kelly; Doyle & Co
7 January 2004
[1] The petitioners' position is set forth in the petition. The land they own is adjacent to Duff Street Lane. The respondent owns Duff Street Lane. The parties are in dispute as to where the boundaries of their respective properties lie. The petitioners bought their land in June 2001. They did not apparently attempt to buy Duff Street Lane itself. At that time the respondent did not own the lane; but he and others had servitude rights of access over the lane, thus having access to the subjects they own at the end of the lane. The petitioners' Land Certificate does not enable the exact boundary between their subjects and the Lane to be determined. Counsel for the petitioners conceded that, if the dispute had to be resolved in Court, a Proof would be necessary. The respondent purchased the Lane in May 2003. He has not yet obtained a Land Certificate. However, there is a disposition in his favour - see Article 2 of the Petition. On the face of that disposition the respondent paid £5,200 as consideration for that purchase. The subjects so conveyed are described in the disposition but not in such terms as would enable the extent of the area disponed to be measured to the nearest millimetre. There was however a plan referred to in the disposition. That is a plan taken from what appeared to be the then current Ordnance Survey map; and the lane, being the area conveyed, is shown therein. It is no doubt possible to make more or less accurate measurements from that particular document. The petitioners in introducing the matter made it plain, and this was accepted by Mr Kelly for the respondent, that the parties were in dispute about the linear boundary between the petitioners' premises lying to the south and the lane lying to the north. In essence the petitioners maintain that their title includes ground on which they have built the new flats and which extends approximately 1 metre to the north of the north wall of those flats. I use the term "approximately" because on the carefully measured plan, 6/1 of process, the actual distance is shown to be several millimetres short of a metre in places and, more importantly perhaps, part of the newly constructed building being the concave part with windows in it, seen in several of the photographs which were lodged, appears to extend the full metre or more from the general line of the building. On the basis that the petitioners' property extends as shown on that plan 6/1 of process, I was asked to pronounce interdict to stop the activities described in paragraph (b) from being carried out, that is to say to stop the respondent from depositing vehicles or other waste items on that particular stretch of the ground approximately 1 metre wide adjacent to the newly built building. I was also asked to ordain him to remove from that same strip of ground certain vehicles which he has placed there and the position of which is shown in the photographs lodged on behalf of the petitioners. I was informed that the vehicles had been there since July 2003. I was also informed, without contradiction, that when Mr Bairnsfather, the respondent, purchased Duff Street Lane this year, the petitioners actually entered a bid to purchase the same ground; but presumably his bid was higher and it was he who succeeded, not they. I am also informed, as is clear from the face of the petition, that the dispute is already before the Sheriff Court. It appears that the respondent himself raised interdict proceedings against the petitioners in Edinburgh Sheriff Court in January 2003 and obtained interim interdict which was given in an interlocutor dated 17 January 2003. I have not seen that process but I am informed that that related to the carrying out of building work on what was said at that stage to interfere with the respondent's servitude right of way over Duff Street Lane. The position, of course, was now changed in respect that he has now purchased Duff Street Lane. However, in September 2003, the respondent raised breach of interdict proceedings at Edinburgh Sheriff Court. A hearing took place on 27 and 28 October and 6 November 2003 and the matter is still at avizandum.[2] I can deal with certain procedural matters quite shortly. I am perfectly satisfied that the prayer of the petition is in such terms that I would be able, if other aspects of the case favoured the petitioners, to grant a Section 47(2) order to ordain the respondent to remove vehicles from the petitioners' property. I am also satisfied that the approach which I have to take both to the matter of interim interdict and to the question of the Section 47(2) order is that which was explained in the Opinion of the Court in Scottish Power Generation Limited v British Energy Generation (UK) Limited 2002 SC 517 at page 526, in paragraph 26. In the present case it is clear that I have to identify the issues in the action and then to go on to consider whether the party seeking the order has demonstrated a prima facie case. Thereafter, if I get that far, I have to consider the balance of convenience.
[3] It is abundantly clear that there is a real dispute between the parties about where the boundary between their respective properties is. It is also abundantly clear that I cannot myself resolve that dispute at this stage. Counsel for each of the parties acknowledged that the matter would have to go to proof if it was not settled in some other way. It therefore follows that I am in the same area as the Lord Ordinary was in Patterson v Menzies 2001 SCLR 266. There the Lord Ordinary held, in a similar type of dispute, that it was not possible to make any confident prediction, at the early stage reached there, about the resolution of the dispute about ownership; and that there was much therefore to be said for the argument that the status quo should be preserved pending resolution of the dispute about ownership. He went on to say that, in that context, "the status quo" meant "the situation on the ground". Again, I acknowledge that that is the correct approach for me to take, being the approach taken by the Lord Ordinary in that case. It is clear however from paragraph [26] which I quoted from the Scottish Power Generation Limited case that I am entitled to have regard to the possible strength of the case on each side. Of course, I cannot make a judgment as to which is the stronger case for the reasons already explained: that would need to go to proof. However, I was invited to hold that the petitioner's position was the more reliable because a plan, number 6/2 of process, had been prepared by architects and surveyors making use of both the land certificate issued by the Land Register to the petitioners and also having regard to the computer generated version of the Ordnance Survey map and a further plan prepared by the surveyors using other modern techniques. What that plan purports to show is the so called "line of existing boundary" which appears on that plan. Mr Kelly, on behalf of the respondent, explained that in the limited time available to him he had only been able to produce the deed in his client's favour which showed, under reference to a map, the ground which the respondent had bought in the spring of this year. However, that map had been used in order to produce a blown up version of the relative part, namely 7/2 of process, and there was also a similar blown up version, number 7/3 of process of an Ordnance Survey map from 1968. On the basis of measurements taken from these enlarged versions of the Ordnance Survey plan annexed to the title deed he submitted that it became plain that the boundary of the respondent's premises extended some half a metre approximately to the south of the so called "line of existing boundary" shown on number 6/1 of process. There had been measured a distance of 14.9m from the right angle corner of the hatched or dotted area shown on number 7/3 a line to the north of Duff Street Lane. The distance from that corner to the wall on the south side of Duff Street Lane was said to be that distance of 14.9m. For what it is worth, my own measurement, with a ruler, of the same distance from the Ordnance Survey map annexed to the deed of title of the respondent points to that measurement as being approximately accurate. In these circumstances, my impression, and it is difficult to do more than form an impression at this stage, is that the case for the respondent in relation to ownership of the disputed area is stronger than the case for the petitioners. That is a factor which I must take into account in deciding what to do next. I also, however, take into account the fact that the petitioners neglected to purchase the lane when they had the opportunity to do so. I also take into account the fact that although they have had the premises which they bought for well over two years they have, until now, done nothing (at least in Court) do try to secure their title to what they claim. The obvious way to do that, in the absence of agreement, would have been to raise an action of declarator. An action of declarator might well have also included ancillary conclusions for interdict and for an order regulating interim possession under Section 47(2) of the Act. I also have to have regard to the fact that the petition which has come the Court seeks an order in terms which I would simply not be prepared to grant. The petition seeks an order to interdict the defender from depositing vehicles etc. "on the petitioners' property". Similarly, the order sought under Section 47(2) is to ordain the respondents to remove vehicles etc. "from the petitioners' property", at the numbers specified in Duff Street Lane. Given the fact that there is a serious dispute as to where the petitioners' property begins and ends in relation to the adjacent property belonging to the respondent I would not be prepared to grant an interdict in those terms, despite the fact that the Lord Ordinary, on an ex parte application, has already granted interim interdicts under heads a) and c). It would be very difficult for the Court to deal with an alleged breach of such an order, given that the extent of the petitioners' property is not yet ascertained. When this was pointed out, counsel for the petitioners sought leave to amend. In particular, she sought leave to amend the prayer by replacing the reference to "the petitioners' property" by words which I have noted as follows, "the area of land marked as being within the petitioners' legal boundaries in terms of the plan drawing number 543(SA) 100 prepared by Messrs Hackland Dore (number 6/1 of process)". That proposed amendment was opposed by Mr Kelly as coming too late. In my view, it does come too late and I am not prepared to allow the amendment at this stage. I emphasise the words "at this stage" because it appears to me that the whole matter has had to be dealt with in a somewhat unsatisfactory way. The petitioners have placed material before me, the reliability of which it is difficult to judge. In particular, I have some difficulty in deciding that the so-called line of existing boundary appearing on 6/1 of process is a line that I can regard as reliable. Its precise provenance was not made clear to me, although Miss Ross was at pains to show how carefully the architects and surveyors had worked in order to produce it. Nonetheless it appears to be at variance with the respondent's title. Furthermore the respondent frankly acknowledged that in the time available it was difficult for him to place satisfactory material before the Court and that was why he relied upon documents 7/2 and 7/3 of process, for former prepared by scanning the plan annexed to his title and then expanding it. It is not explained who did that or if it was professionally done and it appears to me that the Court ought ultimately, before making any further decision, have better material before it.
[4] I am, however, particularly impressed by the submission that I should follow the same course as was followed by the Lord Ordinary in Patterson v Menzies and preserve the status quo. The status quo in this case appears to me to be that the respondent has, since July, deposited or parked vehicles up to what he conceives to be the northern limits of his property. They are said to be parked there, at the very edge of the lane, so as to allow reasonable access for all using the lane to access their premises. The petitioners now propose to carry out certain operations, which would necessitate the removal of vehicles. These operations are said to be the operation of concluding the works on the external wall and creating a pavement about 1 metre out from that wall. I can see real difficulties with that because a pavement 1 metre in width would appear, even on the basis of 6/1 of process, to risk extending beyond the line of the existing boundary; and it leaves big question marks over that part of the newly constructed building which goes to the very limits of that boundary at the concave building with windows to which I have already referred. I must also take into account the fact that the matter has been before and is still before the Sheriff who has apparently had a hearing which lasted three days. I was not told to what extent evidence was led, but that matter is at avizandum.
[5] In considering all these matters, including those that bear upon the balance of convenience, I also have in mind that what the petitioners seek to do is to proceed with these works with a view to completing in January and allowing tenants in in February of 2004. As I say, that would interfere with the status quo. Furthermore the creation of a pavement, whatever its precise character, would then put on the disputed ground a new construction, i.e. the pavement, which might ultimately have to be removed. It also appears to me that there would be real difficulties for the petitioners in obtaining a habitation certification, given that they could not instantly and unchallengeably guarantee that they owned ground to the extent of 1 metre beyond the wall and windows on the north side of the new building. There is also a difficulty in that - although it does not, strictly speaking, arise in this petition - various parties apparently have a servitude right of way over the lane and it looks, on one view, as if the curved part of the building to which I have referred is itself possibly interfering with access via the servitude right of way. Of course, I can express no opinion upon that but at least it is stateable that the right of way extends the whole width of the lane and does not extend only to such of the lane as is needed to allow vehicles to pass.
[6] In all the circumstances, as I have indicated, I will not allow the amendment. Given what I have already said about the terms of the prayer, I am not prepared to grant the interdict or the order at this stage. I would wish to emphasise this that this Opinion has been delivered by me at approximately 4.45 on a Friday afternoon following substantial and very helpful submissions, over two days, from counsel. It appears to me that the matter does require to be looked at much more thoroughly than has been possible on this particular occasion. I am also conscious that in dealing with the matter in this way and dictating the Opinion in Court to let parties know where they stand, I may well have not done full justice to all the arguments that were advanced to me. However, in the circumstances, I concluded that it was better to make my decision on the matters before me and to give a broad indication as to what the reasons were and hope that in doing so I do not do any injustice to the careful submissions that were made to me on behalf of both parties. That disposes of the matter. The motion to amend is refused. The motion for interim interdict and for a Section 47(2) order also refused.
[7] After I delivered the Opinion in Court Mr Kelly moved for the expenses of the hearing. That motion was not opposed. He also moved to sist the cause to allow the respondent to apply for legal aid. That motion was opposed. I shall refuse that motion again in hoc statu. As I indicated at an earlier stage, this matter might be capable of considerable clarification if parties have time to think about the submissions on both sides and indeed about the terms of my decision. It appears to me that, because the premises here are premises built by a housing association, and it is hoped to make them available to tenants in about two months time, it would be highly unfortunate if these proceedings were sisted in such a way that that could not possibly happen. By refusing the sist at this stage I would enable parties to come before the Court again with clearer material. They may also wish to seek some agreement. It may be that some agreement is possible but the matter is certainly serious enough to warrant discussion. I am also sure that the proceedings and the very clear submissions which I have heard from both parties will enable the parties to see where their best interests and their prospects lie. Accordingly I think it is better for the petition not to be sisted. If the position changes, of course, Mr Kelly can renew motion to sist and the matter can again be considered by the Court.
[8] This Opinion was dictated in Court. Unfortunately, the opening sentences were not properly recorded. The first 12 sentences of this Opinion have been constructed from memory: they are not in the same terms as the Opinion dictated in Court. I believe the missing part was entirely introductory narrative.
