Tcs Holdings Limited V. Ashtead Plant Hire Company Limited And Others
| Jurisdiction | Scotland |
| Judge | T.G. Coutts, Q.C. |
| Date | 08 January 2003 |
| Docket Number | A5201/01 |
| Court | Court of Session |
| Published date | 08 January 2003 |
| OUTER HOUSE, COURT OF SESSION | |
| A5201/01
| OPINION OF T G COUTTS, Q.C. Sitting as a Temporary Judge in the cause TCS HOLDINGS LIMITED Pursuers; against ASHTEAD PLANT HIRE COMPANY LIMITED and OTHERS Defenders: ________________ |
Pursuers: Young; Dundas & Wilson, C.S.
First Defenders: Johnstone; Simpson & Marwick, WS;
Second Defenders: Sanderson; Bishops
8 January 2003
[1]The Forth Ports Authority own substantial lands at West Harbour, Granton. They leased 1.34 acres of that land to the pursuers' predecessors in title by Minutes of Lease registered in the General Register of Sasines on 10 July 1980. The date of entry was 5 May 1980. Between those lands and West Harbour Road, Granton, where the main public sewer ran, further lands were leased by the Authority to another, difficult, tenant. A foul water drainage pipe was laid which ran from the pursuers' lands and connect with the main public sewer underneath the adjoining property. The owners of the sewer laid by the pursuers' predecessors, are the Forth Ports Authority. The pursuers accordingly neither own the sewer nor have they any title to the lands through which it runs until it connects with the main sewer. In 1997 various works were commenced upon the lands adjacent to the pursuers' leaseholding through which the said sewer ran. The first defenders were then the leaseholders of that adjacent land. The second defender was the building surveyor engaged by them in connection with those works.
[2]In the course of the conduct of those works damage was caused to the said sewer running from the pursuers' premises to the main sewer. As a result it collapsed. Substantial repairs were required which the pursuers were called upon by Forth Ports Authority to undertake in terms of a Minute of Agreement hereafter referred to. This action concerns the pursuers' claim for reparation from the defenders in relation to loss and damage caused by the said collapse.
[3]The action came before the Court at procedure roll in respect of pleas-in-law for the defenders challenging the relevance of the action and the pursuers' title to sue. It was accepted by Mr Young for the pursuers that in order to succeed in his action he required to aver and prove that the pursuers had a possessory right to the sewer in question before they could be found entitled to damages.
[4]In terms of the Minute of Lease there were leased certain lands together with a right to connect to and take into use all sewers, drains and services under, over or above any part of Granton Harbour and that without payment of any compensation together with the right of access to such sewers and others at all reasonable times for all reasonable purposes and payment of all damages thereby occasioned. The lease was to subsist until 11 November 2105. Development, maintenance and repairs were dealt with under Clause Sixth which in relation to sewers provided:
"The Tenants shall further relieve the Authority of an equitable share calculated according to the respective user of the proper and reasonable expenses attributable to the subjects of upholding, repairing, renovating and, where necessary, renewing all sewers, drains and services as are common to the subjects and the adjoining property and also any dock roadways and pavements and drains ex adverso the subjects for which the Authority might otherwise be liable exclusively or in common; such buildings, development, alterations and improvements as the Tenants shall effect shall become and remain the property of the Authority without any claim for compensation or otherwise by the Tenants on their removal."
In addition, Clause Eighth provided:
"The Tenants shall be bound at their sole expense so far as not already done to construct and maintain in good order and repair all drains, pipes and cables required to serve exclusively the subjects it being agreed, however, that the Authority shall maintain said drains, pipes and cables in so far as situated outwith the subjects let to the satisfaction of and, subject as after provided, at the expense of the Tenants; DECLARING, however, that in carrying out said maintenance the Authority shall not incur any major item of expense without first securing the written approval of the Tenants, such approval not to be unreasonably withheld: DECLARING, further that the Authority shall have the right to use or connect to the said drains, pipes and cables provided that the proposed use or connections are not reasonably likely to interfere with the then or proposed use of said drains and others and that without payment of compensation to the Tenants therefor subject to the Authority thereafter paying, and so indemnifying the Tenants in respect thereof, an equitable share (calculated according to the respective user), of the maintenance cost of said drains and others."
[5]Prior to the lease, on 30 January 1980 the Forth Ports Authority had signed a document headed "Wayleave" commencing "... Minute of Agreement between the Forth Ports Authority and Town Centre Enterprises Limited" (the pursuers' predecessors). That document provided that the Authority, subject to conditions, granted to the second party the following "privilege" videlicet Lay storm water and foul drainage pipes to West Harbour Road, Granton Harbour between points illustrated on an attached drawing. That privilege was thereafter referred to as such in terms of the Minute of Agreement. Paragraph 4(5) and (6) provided, read short, for a complete indemnity for the Authority for any matter which but for the...
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