Ury Estate Limited Against Bp Exploration Operating Company Limited
| Jurisdiction | Scotland |
| Judge | Lord Bannatyne |
| Neutral Citation | [2019] CSOH 36 |
| Date | 18 April 2019 |
| Docket Number | CA10/18 |
| Court | Court of Session |
| Published date | 18 April 2019 |
OUTER HOUSE, COURT OF SESSION
[2019] CSOH 36
CA10/18
OPINION OF LORD BANNATYNE
In the cause
URY ESTATE LIMITED
Pursuer
against
BP EXPLORATION OPERATING COMPANY LIMITED
Defender
Pursuer: Mr MacColl QC, Ms McKinlay advocate; Davidson Chalme rs LLP
Defender: Mr Dunlop QC, Ms Watts advocate; Pinsent Mason LLP
18 April 2019
Introduction
[1] This matter came before me for proof before answer in the commercial court.
[2] In summary, the present case centres around this:
The pursuer seeks payment of compensation from the defender as a result of the
pursuer’s claimed inability to develop Ury House as a 35 bedroom five star
luxury hotel (“the proposed development”) due to the proximity to Ury House of
the BP Forties Pipeline (“the pipeline”).
2
The pursuer claims that it is entitled to such compensation as a result of the
provisions of a grant of servitude recorded in the General Register of Sasines for
the county of Kincardine on 26 August 1977 (“the servitude”).
[3] The dispute in the case in short related to:
Whether the defender is liable to pay compensation to the pursuer in terms of the
servitude?
If the answer to the first question is yes: what is the proper quantification of loss
which the pursuer has suffered?
Agreed background
(a) Title
[4] The pursuer is the heritable proprietor of certain lands known as and comprising
Ury Estate near Stonehaven (“the pursuer’s subjects”).
[5] The pursuer’s title to the pursuer’s subjects is registered in the Land Register of
Scotland under title number KNC11588, which title is produced in the joint bundle at 358.
[6] The defender was until 31 October 2017 the owner and operator of the pipeline.
[7] The pipeline passes through the pursuer’s subjects.
[8] By the servitude the then owner of the pursuer’s subjects (being a different company
then known as Ury Estate Limited) granted in favour of BP Oil Development Limited a
servitude right, tolerance and wayleave of laying down, maintaining, renewing and
protecting a line of steel pipe not exceeding 36 inches internal diameter in and through, inter
alia, the subjects comprising the mansion house of Ury and other parts of the lands and
estate of Ury for the purpose and use of conveying crude oil or petroleum or its products
3
from the BP terminal at Cruden Bay, Aberdeenshire to their refinery terminal at
Grangemouth.
[9] The presence of the pipeline within the pursuer’s subjects is regulated by the grant of
servitude.
[10] The servitude is recorded in paragraph 9 of the burden section of the said title sheet.
The servitude incorporates a schedule of conditions the terms of which are agreed between
parties.
[11] In the event that compensation is determined by the court in the present proceedings
to be payable to the pursuer under the servitude, it is accepted by both parties that the
compensation is due to be paid by the defender.
(b) The basis of claim
[12] The present claim is brought on the basis of condition 25 of the schedule of
conditions incorporated in the servitude. The condition read short, as relevant to the
circumstances averred by the pursuer, is as follows:
“(a) if at any time the [pursuer] wishes to develop land affected by the
pipeline…the [pursuer] shall if the said proposed development of the land is
prevented in whole or in part by reason only of the existence of the pipeline, give
written notice to [the defender] of the said proposed development including details
of the application for and refusal of or conditional grant of planning permission in
principle by the Planning Authority. Within six calendar months of the receipt of
such written notice [the defender] shall give their decision in writing to the [pursuer]
that they intend to divert the pipeline or that they intend to pay compensation for all
losses arising from their decision not to divert the pipeline, including, without
prejudice to the foregoing generality, losses of Development Value…”
(c) The development at Ury House
[13] A former mansion house (“Ury House”) is located within the pursuer’s subjects.
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