William Paterson Pollock And Others Against Drogo Developments Ltd
| Jurisdiction | Scotland |
| Judge | Lady Wise |
| Neutral Citation | [2017] CSOH 64 |
| Date | 13 April 2017 |
| Docket Number | A163/16 |
| Court | Court of Session |
| Year | 2017 |
| Published date | 13 April 2017 |
OUTER HOUSE, COURT OF SESSION
[2017] CSOH 64
A163/16
OPINION OF LADY WISE
In the cause
WILLIAM PATERSON POLLOCK and OTHERS
Pursuers
against
DROGO DEVELOPMENTS LTD
Defender
Pursuers: G MacColl; Thorntons Law LLP
Defender: Garrity; MacRoberts LLP
13 April 2017
Introduction
[1] The issue in this case is whether the defender, a company involved in the development of land, had any right to lay two new drainage pipes through the pursuers’ property. By disposition dated 2 September 2008 (“the 2008 disposition”) the Scottish Ministers disponed to the pursuers and James Pollock (their brother) certain land extending to 50.5 hectares on the north side of Denny Road, Larbert at the Royal Scottish National Hospital, Larbert (“the subjects”). The interest of the pursuers and their brother as proprietors was registered in the Land Register of Scotland under Title Number STG61960. The pursuers’ brother James Pollock subsequently disponed his one quarter pro indiviso share in the subjects to the second and third pursuers. Accordingly the pursuers now hold title to the whole subjects. At the time of the 2008 disposition, the Scottish Ministers retained land adjacent to the subjects that had development potential (the “retained property”). It was always anticipated by the pursuers and their brother that the land would eventually be developed. Accordingly, the disposition in favour of the pursuers and their brother made provision for a number of burdens and servitudes which reflected the anticipated development potential of the retained land. A schedule to the disposition granted certain burdens and servitudes in favour of the property retained by the Scottish Ministers and imposed other burdens and servitudes on the subjects disponed to the pursuers.
[2] In 2014 the Scottish Ministers sold part of the retained property to the defender. The defender’s title to that land (“the defender’s property”) is registered in the Land Register of Scotland under Title Number STG69787. The defender began subsequently to develop the land transferred to them. In order to facilitate that development they have installed two drainage pipes across the pursuers’ land. It is the pursuers’ contention that the defender had no right to encroach on their land and did so without any permission. Accordingly the pursuers seek declarator that the defender has wrongfully encroached upon the subjects by the laying of the two pipes. They seek also an order for removal of those pipes or, in the alternative, payment to them of the sum of £150,000. The case came before me for a Procedure Roll discussion.
Arguments for the Pursuers
[3] Mr McColl submitted that the defence presently advanced on Record was irrelevant and that decree de plano should be pronounced in favour of the pursuers in terms of the first and second conclusions following their fourth and fifth pleas in law being sustained. He referred to the terms of the 2008 disposition, and argued that there was nothing within it that gave the defender any right to lay new pipes through the pursuers’ land. The burdens created were set out in a schedule to the disposition. The definitions section in Part 1 of the Schedule defined “the retained property” as meaning the Royal Scottish National Hospital UNDER EXCEPTION OF the disponed property. Part 1 also included a definition of “the Service Strip” which was included in anticipation of there being future development. The Service Strip is defined as:
“… that strip of ground lying within the disponed property the dimensions of which are to be determined as follows:-
(a) the said strip of ground will be no more than 10 metres in width but can be extended to no more than 18 metres in width during the period when the services and utilities referred to in Paragraph 1 of Part 5 of this Schedule are being installed declaring for the avoidance of doubt that once the said services and utilities have been installed, the width of the said strip of ground will revert to being no more than 10 metres in width; and
(b) the said strip of ground will follow the route shown hatched in blue on Plan 4 annexed and signed as relative hereto or along such other route as may be agreed between the Disponed Property Proprietors and the Retained Property Proprietors both parties to act reasonably;”
Mr McColl noted that the specific route of the Service Strip was shown on the last of four plans annexed to the disposition. Importantly, it is accepted and admitted in the defender’s pleadings that the disputed pipe falls outwith the Service Strip. The schedule to the disposition comprises five parts. Part 1 has the definitions already referred to, Part 2 lists the real burdens affecting the retained property in favour of the disponed property, Part 3 narrates certain rights benefitting the disponed property and burdening the retained property, Part 4 lists the real burdens affecting the disponed property in favour of the retained property and Part 5 comprises the rights benefitting the retained property and burdening the disponed property.
[4] It was Part 5 of the schedule that required to be considered in categorising the defender’s actions. Their servitude rights were restricted to those given to them in Part 5 and only in so far as the pursuers’ land was burdened by the relevant provisions. Part 5 of the schedule to the disposition is in the following terms:
“The following rights are reserved in favour of and for the benefit of the Retained Property and are imposed on and burden the Disponed Property namely:-
1. heritable and irredeemable servitude rights to install and thereafter use, inspect, maintain, repair renew, alter or enlarge services and utilities under the Service Strip with all necessary rights of access for such purposes; under declaration that (a) during the installation of the services and utilities as aforesaid the Retained Property Proprietors will erect stockproof fencing on each side of the pipe/cable track but with provision for livestock to cross the pipe/cable track at suitable points and (b) unless the services and utilities are installed as aforesaid within 10 years of the Date of Entry, the servitude rights hereby reserved will fall and will no longer be enforceable by the Retained Property Proprietors against the Disponed Property Proprietors;
2. heritable and irredeemable servitude rights to widen, straighten and otherwise improve (including without prejudice to the foregoing generality to make provision for payments and street lighting) to local authority adoptable standards the Southern Access Road by incorporating within the existing access road (which for the purposes of this right shall be deemed to include any existing footpath(s) and/or verge(s)) strips of ground on either side of the existing access road up to a maximum width of 10 metres on either side of the existing access road; under declaration that unless the 10 metres on either side of the existing access road; under declaration that unless the existing access road has been widened, straightened and otherwise improved as aforesaid within 10 years of the Date of entry, the servitude rights hereby reserved will fall and will no longer be enforceable by the Retained Property Proprietors against the Disponed Property Proprietors;
3. heritable and irredeemable servitude rights for all existing services including the main drain to the River Carron serving the Retained Property including the Larbert Hospital Development in so far as the same lie within the Disponed Property with right to use same and all necessary rights of access thereto for cleaning, inspecting, maintenance, repair, renewal, alteration and enlargement thereof.
4. heritable and irredeemable servitude rights to connect into all existing or future services and utilities lying under the Service Strip but only at the point where the Service Strip crosses the Southern Access Road with the right to use same and all necessary rights of access thereto for cleaning, inspecting, maintenance, repair, renewal, alteration and enlargement thereof.
5. non exclusive heritable and irredeemable servitude rights of access and egress for pedestrian and vehicular traffic for all existing purposes over the existing road leading to and past Househill Farm between the points marked G, F and H on Plan 1.”
[5] Mr McColl submitted that a number of points arose from the terms of Part 5. First, it was clear that any installation of new services and utilities had to be under the Service Strip. This was something that the parties had plainly agreed, unambiguously, and represented a bargain between them. It had been agreed between the pursuers and their brother and the Scottish Ministers. The defender, as the subsequent owner of the retained property, was bound thereby. Secondly, paragraph 2 of Part 5 created a specific right in relation to an access road. The provision for that made clear that any widening or straightening of the road fell within that part and was time limited. Thirdly, provision was made for servitude rights to benefit the retained property in relation to all existing services. Those services, existing as at 2008, included the main drain down to the River Carron all as narrated in paragraph 3 of Part 5. Significantly, there was no reference to any right to install any services in paragraph 3 of Part 5. Installation was only permitted in terms of paragraph 1 of Part 5, namely along the Service Strip. The background to the requirement for the creation of these servitude rights was that previously the disponed and retained properties had been on one title. It was the splitting of the land into separate parcels that led to the requirement for servitude rights for the services that already existed. Accordingly the burden on the pursuers’ title was to provide access for cleaning, inspecting, maintenance repair renewal, alteration or enlargement of those existing services. It was Mr McColl’s contention that...
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