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Cite as: [2004] ScotCS 105, 2005 SCLR 185

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Canmore Housing Association v. Bairnsfather (ta BR Autos) [2004] ScotCS 105 (28 April 2004)

OUTER HOUSE, COURT OF SESSION

P1810/03

OPINION OF LORD BRODIE

in the Petition of

CANMORE HOUSING ASSOCIATION LIMITED

Petitioners;

against

BRUCE BAIRNSFATHER trading as

B. R. AUTOS

Respondent:

________________

Petitioners: J. J. Mitchell, Q.C.; Biggart Baillie

Respondent: Kelly; Doyle & Co

27 April 2004

[1] The petitioners are Canmore Housing Association Limited. They are the proprietors of subjects at 1 to 5 and 2 to 18 Duff Street Lane, Edinburgh, in terms of Land Certificate Title Number MID3720. Duff Street Lane ("the Lane") has not been adopted by the local roads authority. It is a private street. The petitioners have built a block of flats on the west side of the Lane. The respondent is the proprietor of the Lane, in terms of a disposition in his favour dated 28 May 2003. The respondent is also the proprietor of garage premises on the west side of the Lane, lying to the south of the block of flats. In order to get access to the petitioners' block of flats and the respondent's garage premises it is necessary to pass over the Lane. The petitioners and the respondent are in dispute as to where the boundaries of their respective properties lie. In particular, they are in dispute as to whether and, if so, for what distance, the petitioners' subjects extend to the east of the building line of the block of flats. The petitioners were granted what they aver to be all necessary consents for the occupancy of the block of flats in April 2004 (a series of Authorisations of Temporary Occupation has been lodged as 6/11 to 35 of process). The flats, however, are presently empty. According to the petitioners this is because of the circumstances averred in the petition.

[2] The petition came before me on 20 April 2004 on the petitioners' motions to have their Minute of Amendment received, the petition amended in terms of the Minute, for interim interdict of the respondent from depositing vehicles or other waste items in the Lane and for an interim order under section 47(2) of the Court of Session Act 1988 for the removal of the vehicles and waste items currently placed in the Lane. The petitioners claim that the presence of the vehicles which have been deposited in the Lane constitutes a nuisance which they are entitled to prevent by the orders sought. I heard parties on 20 April and at a continued hearing on 23 April 2004. The petitioners were represented by Mr Mitchell QC. The respondent was represented by Mr Kelly, Advocate.

[3] I shall allow the petitioners' Minute of Amendment to be received and the petition amended in terms.

[4] The petition has previously been before the court. A similar application to that before me came before Lord McCluskey in December 2003. On that occasion the petitioners based their application on infringement of what they alleged were their property rights. They made no allegation of nuisance. Following a hearing over two days, Lord McCluskey refused the applications for the reasons that he gives in his opinion dated 7 January 2004, to which I would refer. As appears from Lord McCluskey's opinion, interdicts had previously been granted against the respondent, ex parte, from entering and causing damage to the petitioner's property and from using threatening or abusive behaviour towards their employees. The parties have also been in litigation in the Sheriff Court. In these proceedings the present respondent was pursuer in an action for interdict. Interdict ad interim was granted on 17 January 2003. The petitioners were found to have breached that interdict, following a hearing on 27 and 28 October and 6 November 2003.

[5] The petitioners acquired the subjects in the Lane in June 2001. I was advised by Mr Mitchell that the petitioners had been misled by the response to a property enquiry made of Edinburgh City Council, into believing that the Lane had been adopted as a public road. They therefore made no attempt to acquire the Lane prior to beginning construction of the block of flats. The respondent was not then the proprietor of the Lane but he and others had servitude rights of access over it to the subjects owned by them at southern end. As I have already indicated, the respondent acquired the Lane in May 2003. When the matter was before Lord McCluskey he was informed that the respondent had outbid the petitioners in order to do so.

[6] The dispute between the parties as to the extent of their respective properties is discussed by Lord McCluskey in the course of his opinion. He was not satisfied on the basis of the material put before him that the petitioners had established, prima facie, that their subjects extended sufficiently to the east of the building line of the block of flats as to have the result that the respondent had, as the petitioners aver, deposited vehicles partly on the petitioners' property. In the hearing before me the petitioners did not seek to controvert that conclusion. I was therefore being invited to approach the matter on the assumption that the vehicles with which the applications were concerned were positioned wholly on land owned by the respondent.

[7] It is averred by the petitioners and admitted by the respondents that from a date no later than September 2003 the respondent has deposited vehicles close up against the petitioner's block of flats. The petitioners estimate the distance of the vehicles from the block as being about twelve to eighteen inches. Both parties lodged photographs illustrating these vehicles as they are currently positioned (6/6 and 7/4 of process). In the petition these vehicles are described as non-roadworthy, for the most part untaxed, derelict and having no commercial value. Mr Kelly, on behalf of the respondent, confirmed that these vehicles were not currently taxed and therefore could not be used or placed on a public road. They had been drained of fuel. He explained that they had value as a source of spare-parts for the respondent's garage business. Consideration of the photographs would indicate that the vehicles have the appearance of being non-roadworthy. Some have broken windows. Some have been used for the deposit of household rubbish. One has the appearance of having suffered fire damage to the dashboard. It was explained by Mr Kelly that this had occurred in the respondent's garage when the respondent had been working on it. A feature of the positioning of the vehicles is that they are placed virtually nose to tail with the exception of a point opposite to an entrance door to the block of flats. I do not suppose this to be accidental.

[8] The petitioners' averments in support of their case that the presence of the vehicles constitutes a nuisance which they are entitled to have prevented by the granting of the orders sought (these being averments in the petitioners' Minute of Amendment) are in these terms:

"These vehicles, which are derelict and for the most part untaxed, have no commercial value. They have broken windows. They are readily accessible to children and vandals. They are, as the respondent is well aware, a danger to children. They are further, as the respondent is well aware, an invitation to vandals. On 5 March 2004 one of them was set on fire, as was entirely predictable, causing substantial damage to the wall of the petitioners' property. It is predictable that in the near future others will be set on fire. This will cause real risk to the occupiers of the property. Because of the placing of the vehicles and the width of the lane, it is likely that fire engines will not be able to enter the lane. In any event, further fire damage will be caused to the petitioners' property. The respondent has no legitimate reason for placing these vehicles in the lane. In these circumstances it is believed that the purpose of the respondent in placing derelict vehicles in the lane, whether on his property or on the petitioners', is to harass the petitioners and their tenants, either with the purpose of creating a nuisance to them, or with a view to extracting large sums of money to buy him off. He has stated that he will desist and remove himself if the petitioners pay him £800,000. The vehicles are a nuisance. In any event, they were placed there in aemulatio vicini."

[9] Mr Mitchell's submissions in support of his motions that I should make an order in terms of section 47(2) of the Court of Session Act 1988 and grant interim interdict were essentially an elaboration on the above averments. As indicating prejudice to the petitioners he referred to the fact that the petitioners had identified 22 potential tenants for the flats in their block but the petitioners were unwilling to give them entry while the fire hazard constituted by the respondent's vehicles remained. There might be difficulty in maintaining insurance cover. The vehicle fire on 5 March 2004 had resulted in a window being put in and other damage to the extent of about £3000. Mr Mitchell emphasised the absence of any legitimate purpose in the respondent placing the vehicles close to the petitioners' property. He said that the respondent had described the Lane as a "ransom strip" (Mr Kelly confirmed that, through his solicitors, the respondent had proposed to those acting for the petitioners that the petitioners might wish to acquire the Lane for a sum in excess of £800,000).

[10] Mr Kelly disputed that the petitioners had made out a prima facie case of nuisance. As craved in the petition, the order sought by the petitioners was clearly too wide. It related to all vehicles and all parts of the Lane. It would be clearly anomalous if of all the persons who might wish to leave a vehicle in the Lane (as people other than the respondent did) the only person forbidden from doing so was the person who owned the Lane. In any event, the balance of convenience and the consideration that the status quo should not be innovated upon, favoured the respondent.

[11] I record at this point that an undertaking was offered by Mr Kelly, on behalf of the respondent, to remove the Ford Escort registration number J765 WSX and the rubbish which had accumulated in and on other vehicles, particularly on the Nissan pick-up truck shown, for example, in photograph 7/4/15 of process, all within seven days. This undertaking was refused by Mr Mitchell. I further record that Mr Mitchell acknowledged that the order sought was too wide in that it referred to all of the Lane. He accepted Mr Kelly's criticism on this point. He sought to meet it by offering three options as to the way in which the court might identify the area of the Lane to which its order related. In order of preference these were: by reference to the plan 6/1, by imposing a restriction in relation to the area within a distance of 6 metres of the elevations of the block of flats, and by reference to the photograph 6/6/8A of process.

[12] Counsel were at one as to the proper approach for the court to take when asked to make an order of the sort sought by the petitioners here. In discussion counsel referred to it as a section 46 order. Strictly, it is section 47(2) of the Court of Session Act 1988 which empowers the court to make such an order at the interim stage but this is of no consequence. The proper approach for the court to adopt when asked to make such an order is that explained in the Opinion of the Court in Scottish Power Generation Limited v British Energy Generation (UK) Limited 2002 S.C. 517 at page 526, in paragraph 26, in the following terms:

"From [the] authorities we derive the following principles which are relevant to a case of the present kind. First, the Lord Ordinary has to identify the issues in the action, including the legal basis of the claims with which he is dealing. Secondly, he has to consider whether the party seeking the order has demonstrated a prima facie case that an obligation exists, and that there is a continuing or threatened breach of that obligation which the order will address. Thirdly, he has to avoid significantly innovating on the parties' contractual rights and obligations. Fourthly, he has to consider whether the balance of convenience is such as to justify the making of the interim order, bearing in mind the nature and degree of the harm likely to be suffered on either side by the grant or refusal of the interim order, and the relative strength of the cases put forward by each party."

The parallel with the approach to be adopted by the court when considering an application for interim interdict is clear.

[13] I therefore first turn to an identification of the issues in the action, including the legal basis of the claim advanced by the petitioners. The petition avers that the purpose of the respondent in placing derelict vehicles in the lane, whether on his property or on the petitioners', is to harass the petitioners and their tenants and that the vehicles were placed there in aemulatio vicini. Mr Mitchell did not rely on the doctrine of aemulatio vicini as a basis for the petitioners' claim. While not shrinking from what was averred in the petition, Mr Mitchell accepted that otherwise lawful conduct does not become unlawful simply because its purpose is to annoy one's neighbour. In Bradford Corporation v Pickles [1895] A.C. 587 at 597 Lord Watson said that the rule in the law of Scotland was:

"No use of property, which would be legal if due to a proper motive, can become illegal because it is prompted by a motive which is improper or even malicious."

I note that the author of the article on Nuisance in the Stair Encyclopaedia of the Laws of Scotland, volume 14, at paragraph 2034 states that it is now generally accepted that this obiter dictum is far too widely stated. That may be so, but the hearing before me was conducted on the basis that the respondent's placing of the vehicles close to the block of flats was, of itself, a lawful act and that it was not rendered unlawful simply because the respondent, by doing so, wished to annoy the petitioners or otherwise to forward his bargaining position in relation to them. On Mr Mitchell's approach, notions of aemulatio vicini only came into the reckoning at the fourth stage identified in Scottish Power Generation Limited supra: when the court was considering balance of convenience. The legal basis of the claim founded on by Mr Mitchell was the obligation not to use one's property so as to occasion material damage to one's neighbour's property (cf Watt v Jamieson 1954 S.C. 56 at 58). In Mr Mitchell's submission, the placing of derelict vehicles by the respondent was an allurement, indeed a positive invitation, to vandals, to come, break into the vehicles and set fire to them. This had already happened. With a view to persuading me that these circumstances amounted, at least prima facie, to nuisance, Mr Mitchell referred to Maloco v Littlewoods Organisation Ltd 1987 S.C. (H.L.) 33 and Inglis v Shotts Iron Co (1881) 8 R 1006. The facts in Maloco were that the defenders acquired a cinema with a view to its demolition and replacement with a supermarket. Prior to demolition a fire was deliberately started by young persons in the cinema. The fire spread and seriously damaged the pursuers' properties. The pursuers sued for damages alleging negligence on the part of the defenders in failing to keep the cinema secure against entry by malicious third parties. The pursuers succeeded before the Lord Ordinary but failed before the Inner House and in the House of Lords on the ground that they had failed to establish foreseeability of a risk of fire on the part of the defenders. However, Mr Mitchell relied on what was said by Lord Mackay of Clashfern, supra at 73 to 74, and Lord Goff, supra at 79. A relevant fire hazard may be created on the premises of a first occupier which creates a danger to neighbouring properties. Even although the hazard is created by a third party trespasser, once the first occupier has knowledge of the physical facts giving rise to the hazard, he has a duty to take reasonable care to prevent the hazard causing damage to the neighbouring property. On the authority of Maloco, it was Mr Mitchell's submission that in the present case, should there be a recurrence of the events of 5 March 2004 and, in consequence, should there be damage to the petitioners' property, the petitioners would be able successfully to sue the respondent in respect of his breach of the duty of care owed to the petitioners as neighbouring proprietors. In Maloco supra at 79, Lord Goff, when considering liability in respect of failure to take steps to prevent the creation of a risk of fire by third party trespassers, under particular reference to the decision of the Privy Council in Goldman v Hargrave [1967] 1 AC 645, observed that it was difficult to believe that there could be any material distinction as between liability in negligence and liability in nuisance. If that was so, submitted Mr Mitchell, then the respondent's conduct in depositing these vehicles in the knowledge that their windows were likely to be broken by malicious third parties and then set on fire with the probable consequence that the petitioners' property would be damaged, amounted to nuisance. The defenders in Inglis v Shotts Iron Co were a mining company that had leased the coal and ironstone on an estate. They commenced calcining ironstone close to the boundary of the neighbouring estate. This operation produced smoke. The proprietor of the neighbouring estate (Lord President Inglis) sought interdict against the defenders calcining within two miles of his lands on the ground that the smoke was causing injury to his plantations of trees. On proof that the plantations were indeed suffering injury, the pursuer was found entitled to interdict of the defenders from calcining within one mile of his boundary. Lord Justice-Clerk Moncrieff said this, supra at 1021:

"The general rule is that every one is bound to use his property as not to injure his neighbour. It is equally certain that this rule may suffer modification according to the varied considerations of social life. Things which are forbidden in a crowded urban community may be tolerated in the open. Vicinity - close proximity - may make that a nuisance which may cease to be so at a distance; and the habit and practice of the neighbourhood has also some weight in cases of this kind. Nor in extreme cases, do I doubt that the comparative interests at stake may be taken into view."

It was Mr Mitchell's submission that this passage demonstrated that while injury (or risk of injury) to a neighbour was of the essence of nuisance, what constituted a nuisance could not be precisely defined. It was a matter of fact and degree. When Mr Kelly came to address me I did not understand him to take issue with that. He cited the passage in the opinion of Lord President Cooper in Watt v Jamieson supra at 57 to 58:

"... the proper angle of approach to a case of alleged nuisance is rather from the standpoint of victim of the loss or inconvenience than from the standpoint of the alleged offender; and that, if any person so uses his property as to occasion serious disturbance or substantial inconvenience to his neighbour or material damage to his neighbour's property, it is in the general case irrelevant as a defence for the defender to plead merely that he was making use of his own property. The balance in all such cases has to be held between the freedom of a proprietor to use his property as he pleases and the duty on a proprietor not to inflict material loss or inconvenience on adjoining proprietors or adjoining property; and in every case depends on considerations of fact and degree. ... The critical question is whether what he has been exposed to was plus quam tolerabile when due weight was given to all the surrounding circumstances of the offensive conduct and its effects. If that test is satisfied, I do not consider that our law accepts as a defence that the nature of the user complained of was usual, familiar and normal. Any type of use which in the sense indicated above subjects adjoining proprietors to substantial annoyance, or causes material damage to their property, is prima facie not a 'reasonable' use."

Nor did Mr Kelly take issue with the proposition that actual damage to the neighbour's property was unnecessary for a use of property to constitute a nuisance. Risk of an event which would cause damage might be enough. Mr Kelly gave the examples of the domestic storage of wine, on the one hand, and oil, on the other. In the former case it would not be apparent that this could amount to nuisance. In the latter case, depending on circumstances, including the flammability of the oil and the quantity stored, it might amount to a nuisance.

[14] Having regard to the authorities cited and the submissions of both counsel, I have no difficulty in concluding that, to use the language of Scottish Power Generation Limited, the petitioners have demonstrated that an obligation exists on the part of the respondent: that being not to use his property in a way that gives rise to a material risk of damage to the petitioners' block of flats. The question then comes to be whether, prima facie, the petitioners have demonstrated that there is a continuing or threatened breach of that obligation which the order sought will address. That question can be stated as whether the petitioners have demonstrated, prima facie, that the depositing of vehicles of the sort that the respondent has deposited gives rise to a material risk of the starting of a fire (by a malicious third party) which might cause damage to the petitioners' property. I focus exclusively on the risk of fire because that is the only risk which was referred to by Mr Mitchell on behalf of the petitioners.

[15] The fact that there already has been one fire in a vehicle deposited beside the block of flats indicates that however one assesses the degree of risk it is not de minimis. That is not the only factor which might point to the vehicles being a fire hazard. However useful they may be to the respondent's business, the vehicles in question have the look of being derelict and abandoned. Experience indicates that derelict or abandoned property is more readily the subject of vandalism than property which is otherwise. Some of the vehicles have broken windows. Some of the vehicles have become repositories of household rubbish which may include flammable items. I was not told that the respondent has any means of security or surveillance in place. The respondent's concern for the precise condition of each vehicle does not appear to be acute, in that he was unable to say whether the vehicle that was set on fire had broken or intact windows at the time when he left his premises prior to the fire taking place. Moreover, I was advised by Mr Kelly that immediately to the north and west of the Lane there is an area of waste ground which is of such a nature that it attracts the attention of vandals. If that is so that would suggest that the immediate area of the respondent's property is such that it is a place of resort of malicious third parties. Against that, this is not a situation where it is the respondent who is setting fires. Many sorts of property including locked roadworthy vehicles, left unattended in an urban area, may be set on fire by malicious persons. In some urban areas this may be more likely than in others. Commonly this does not occur, whereas there has recently been one such event in the present case. If for no other reason, the present case therefore does not belong in the generality of cases. Nevertheless, even having regard to the additional circumstances which favour the petitioners' contention that I should find there to be a material risk of fire damage to their property due to vandals setting the respondent's vehicles on fire, I am not persuaded, on the basis of one incident, that the necessary degree of risk has been established. On what has been put before me, therefore, I do not find the respondent's use of his property has been shown to be, prima facie, a nuisance.

[16] I would add this. I have found the decision that I was required to make to be a close one. My decision leads me to refuse the petitioners' applications for a section 47(2) order and interim interdict. As the decision depended on my understanding of the facts as they presently are, my refusal of the petitioners' application can only be regarded as a refusal in hoc statu. It cannot preclude a further application on a change of circumstances. Neither does it preclude parties from fixing a hearing of evidence with a view to a final resolution of the issues between them.

[17] Had I been persuaded that the respondent's use of his property constituted a nuisance that would be a breach of his obligations towards the petitioners. I would then have had to consider the third and fourth principles identified in Scottish Power Generation Limited. However, in that by finding, prima facie, there to be a continuing nuisance I would have found that there was a material risk of material damage to the petitioners' property, that fact would have dominated in my applications of these principles. To have prevented the nuisance by a section 47(2) order and interim interdict would not have been to innovate on the parties' rights and obligations. The risk of damage to the petitioner's property would have weighed heavily in the petitioners' favour in my assessment of the balance of convenience in that I would have found them likely to suffer harm in the event of the orders not being granted whereas I would have seen no equivalent consequential risk of harm to the respondent in the event of the orders being granted. In this regard, I would have borne in the mind the submission on behalf of the respondent that his business would be adversely affected by reason of the limited space which would be available to him to deposit vehicles for use as sources of spare parts. On the limited information put before me I was not persuaded that it was essential for the conduct of his business that he deposit these vehicles in the position in which they were deposited. He did not accept that it was the only purpose, but the respondent did concede that one purpose of the vehicles being placed where they were placed was to prevent the petitioners carrying out any further construction work. In that Lord McCluskey found that the petitioners had not established that they were entitled to carry out the works that they proposed, I cannot suggest that there is anything unlawful in the respondent obstructing such works by placing objects on the ground, but it raises a question as to the exact relationship between the vehicles and such business the respondent may conduct in his garage premises. I would also have borne in mind what was said, under reference to the opinion of Lord Nimmo Smith in Patterson v Menzies 2001 S.C.L.R. 266 as to the desirability of preserving the status quo in the sense of the current situation on the ground, but I would also have borne in mind that this status quo has only subsisted for some seven months. I was not satisfied on the basis of what was put before me that the possession of the Lane by the respondent, now that he is its proprietor, is essentially a continuation of the use that he had of the Lane when his rights were limited to a servitude of access and before the construction of the block of flats.

[18] There was some discussion as to the terms of any order that I might grant. Had I determined the applications in the petitioners' favour, I would have allowed parties to address me further before deciding on the precise terms of the interim order.