Scottish Sheriff Court Decisions

A1015/02

JUDGMENT OF SHERIFF PRINCIPAL JAMES A TAYLOR

in the cause

Aldo Spella

PURSUER

against

Scottish Enterprise Ltd and Scottish Water

DEFENDERS

The case was appealed to the Court of Session and then the appeal was abandoned

GLASGOW, 16 May 2006.

The Sheriff Principal, having resumed consideration of the cause, Allows the appeal; Recalls the interlocutor of 14 December 2005; Puts the case out by order of the court for a hearing on 25 May 2006 at 9.30 am.

NOTE:

Introduction

[1] The pursuer was represented by Mr Kinnear, Advocate and the defenders by Mr Sheridan, Solicitor. Following a debate the learned sheriff sustained certain pleas and repelled others the effect of which was to repel the defences insofar as they were directed to liability and to allow the pursuer a proof restricted to his averments directed to quantum.

[2] The pursuer offers to prove that he is the heritable proprietor of part of a private roadway known as Edinburgh Drive in Gourock. Whilst on record that averment was denied, Mr Sheridan accepted that the pursuer would in all probability be able to prove his ownership. The pursuer also offered to prove that in 1990 a Mr and Mrs Alan Bownes purchased a feu from the pursuer. In addition, the pursuer granted a servitude right to Mr and Mrs Bownes to take a pipe from the property which the Bownes had just purchased from the pursuer through that part of Edinburgh Drive owned by the pursuer in order that the Bownes could connect into the publicly adopted manholes and main sewer in Edinburgh Drive. The Bownes' property is hereinafter referred to as "2a Edinburgh Drive". Edinburgh Drive is to the east of the property at 2a Edinburgh Drive.

[3] There was no dispute between the parties that the pipe from 2a Edinburgh Drive when within the curtilage of that property was a drain. It was owned and maintainable by the Bownes. When the pipe left 2a Edinburgh Drive to connect with the public sewer it became a sewer. I was referred to Section 59 of the Sewerage (Scotland) Act 1968 (hereinafter referred to as "the Act"). From the point at which the pipe became a sewer it vested in Scottish Water. Reference was made to Section 16(1)(c) of the Act and to Cowie v Normand 1996 SLT 960.

[4] There was also no dispute between the parties that in the early 1990s the defenders, or their statutory predecessors, were involved in the development of a site known as the Faulds Farm Enterprise Zone (hereinafter referred to as "Faulds Farm"). Faulds Farm is situated to the west of 2a Edinburgh Drive and separated from that property by Ardgowan Estate. The defenders offered to prove that they obtained servitude rights from Ardgowan Estate and the Bownes to allow them to run sewage pipes from Faulds Farm into two connected manholes at the north east corner of 2a Edinburgh Drive. The pipes then ran from Faulds Farm through Ardgowan Estate into 2a Edinburgh Drive where they connected with said manholes which had been upgraded. At this point the pipes became public sewers. They were connected with the main public sewage system through the sewer which ran under the ground belonging to the pursuer.

[5] The pursuer's case against the defenders is that the pursuer has suffered loss and damage in that he has lost the opportunity to realise the commercial value of his property by virtue of the defenders' encroachment. It was said by the pursuer that it was necessary for the defenders to run sewage pipes through his ground in order for the Faulds Farm development to proceed. In other words what the pursuer owned was what is sometimes known as a ransom strip. The pursuer maintained that a reasonable estimate of his loss was the sum which would have been paid by a willing purchaser to a willing seller for the right to utilise the pursuer's property "at about the time of construction of the works encroaching upon the pursuer's property in or about June 1993". The pursuer's case was entirely predicated upon encroachment.

[6] The defenders offered to prove that they had obtained the necessary servitude rights from Ardgowan Estates and the Bownes. If by granting that servitude the Bownes put themselves in breach of the grant by the pursuer of the servitude in the Bownes' favour, in that the burden on the servient tenement was increased, that might give the pursuer a remedy against the Bownes. It would not, submitted Mr Sheridan, give the pursuer a remedy against the defenders. He referred me to the case of Irvine Knitters Ltd v North Ayrshire Co-operative Society Ltd 1978 SC 109 and in particular to the opinion of Lord President Emslie at page 117. Mr Sheridan may well be correct in submitting that the pursuer has a remedy against the Bownes. However, it does not follow that there could not equally be a remedy against the defenders. The passage which was cited in argument stops well short of saying that.

The competing factual scenarios

[7] There were three possible factual scenarios advanced at the appeal. The pursuer's pleadings are far from clear due principally I suspect to the large volume of background evidence which is inappropriately pled. However as I understand the pursuer's position from the pleadings and as elaborated in Mr Kinnear's submissions, it is that in 1993 the defenders dug up the pursuer's land in Edinburgh Drive for the purpose of enlarging the sewage pipe which ran from 2a Edinburgh Drive to the manhole also situated on the pursuer's land. On page 11 of the record it is said that the pursuer's architects "discovered that sewage and foul water pipes had been constructed through the pursuer's ground without his knowledge and consent and connected into the main sewer in Edinburgh Drive..." On page 14 of the record it is said "The upgrading work referred to in terms of that correspondence had encroached onto Edinburgh Drive and was not confined to the off-site area within 2a Edinburgh Drive itself." The upgrading work was to accommodate the increased flow of sewage from the Faulds Farm development.

[8] The defenders on the other hand maintained that all the works which they instructed in about 1993 were either on the land owned by Ardgowan Estate or within the curtilage of 2a Edinburgh Drive and in respect of which they had been granted the necessary servitudes. They offer to prove:-

[9] At the appeal the defenders advanced a third factual proposition. Mr Sheridan submitted that in 1993 the defenders connected to the sewer at a point precisely on the boundary between 2a Edinburgh Drive and the pursuer's land. I do not propose to address this factual proposition as there is no record for it. This is evident from the passage from the defenders' pleadings quoted supra. In any event it seemed to rely on the concept that there was on the boundary between two properties a definable area which was owned by neither of the contiguous landowners. A true "no man's land". It was on this no man's land that, according to Mr Sheridan's submission, the defenders constructed the new manholes. Apart from the lack of a record, I have considerable difficulty with the whole concept of constructing on a boundary something as large as a manhole, which construction can be said to be on neither of the lands owned by the contiguous landowners.

[10] I will first consider the factual position as it is pled by the defenders. Before any improvement works were carried out to facilitate the development at Faulds Farm there was already a system of pipework in place connecting 2a Edinburgh Drive to the public sewer. As I have previously recorded, the parties were agreed that the pipe leading from 2a Edinburgh Drive to the boundary of the property belonging to the pursuer is a drain. Upon leaving 2a Edinburgh Drive, thus entering the property of the pursuer, the pipe was a sewer and was vested in Scottish Water. The foregoing is vouched in Cowie v Normand at 963L to 964A. The concluding sentence of that passage is:-

[11] Thus, on this factual scenario, in order for the pursuer to succeed in his action he would require to satisfy the court that increasing the sewage flow through the sewer vested in Scottish Water where the sewer is situated in the pursuer's land constituted encroachment. I have some difficulty with that proposition. For a definition of encroachment the defenders referred me to the Stair Memorial Encyclopaedia Volume 18 at paragraph 175 (contributed by Professor Kenneth Reid) and to Professor Walker's Principles of Scottish Private Law 3^rd Edition at page 659. I was also referred to the cases of Milne v Mudie(1828) 6S 967, Hayle v Turner (1840) 2D 886 and Alexander v Butchart (1875) 3R 156. The definition in the Stair Memorial Encyclopaedia is:-

[12] I am of the view that encroachment could be more transient than what Mr Sheridan submitted. For example the jib of a crane could be said to encroach into the airspace of ground adjoining that upon which the crane is situated. If the crane is there for one specific task the encroachment might be for a day or two only. However, increasing the flow rate of sewage through a pipe which was entitled to be where it was and to carry sewage is not in my opinion encroachment. It is the introduction to and leaving of the pipe in the ground owned by another which would be capable of constituting encroachment. In this case the pipe was there by virtue of an agreement between the pursuer and the Bownes. It always carried sewage. No doubt the volume of sewage passing through the pipe increased when Faulds Farm fed into it. However in my opinion such an increase in volume being carried by the pipe cannot be said to be an encroachment. That is particularly so when the pipe in question was a public sewer and was vested in Scottish Water. Thus since the pursuer's case is based entirely upon encroachment the pursuer must fail if the defenders are able to prove their averments. It follows that I disagree with the views expressed by the learned sheriff that the defence on the merits is irrelevant.

[13] In his attack on the defenders' pleadings Mr Kinnear relied heavily upon the terms of Section 12, and particularly Section 12(2), of the Act. Section 12(2) provides:-

Mr Kinnear submitted on behalf of the pursuer that since Mr Spella, as the proprietor of the intervening land, had not given his permission, the defenders were not entitled to connect the drain or sewer from 2a Edinburgh Drive to Scottish Water's sewer. If one considers the Act as a whole it is clear that it allocates certain rights and obligations. Section 12(1) entitles an owner of premises to connect to Scottish Water's sewage system. It gives an owner access to the public sewers. Section 12(2) qualifies that right. If however a party, connects into Scottish Water's system, the public system, when not entitled so to do, it is for Scottish Water to take action. The Act does not bestow any rights or remedies on the owner of the intervening land. In any event, as Mr Sheridan pointed out, the action brought by the pursuer is for encroachment. It is not based upon any breach of the Act by the defenders. Mr Sheridan referred me to the cases of Kershaw v Taylor [1895] 2 QB 471, Florence v Paddington Vestry (1895) 12 TLR 30 and The Vestry of St Matthew and Bethnal Green v The School Board for London [1898] AC 190. From these cases I take the proposition that even if there has been an irregularity in the procedures adopted by a developer or property owner when connecting to the public sewage system the end result is that the whole sewage system is nonetheless a public system.

[14] For completeness I should comment on two further submissions made on behalf of the pursuer. In addition to the breach of Section 12(2) to which I have already referred it was also said that the defenders had failed to give the requisite notice to Scottish Water in terms of Section 12(3) of the Act. It was also maintained that the defenders had failed to comply with the terms of Section 12 of the Act by feeding a sewer into what was a public drain. In my opinion neither of these breaches, if indeed there were such breaches, are of any avail to the pursuer. It is for Scottish Water to take action if they believe there to have been a breach of the Act. The Act bestows no rights on the pursuer capable of enforcement by him against the defenders.

[15] Mr Kinnear also referred me to the case of Livingston v Rawyards Coal Co (1880) 7R (HL) 1. In my opinion that case vouches the principle that if a party, without right so to do, removes minerals from land, the true owner is entitled to the value of the minerals removed. There may be an issue as to how the value should be quantified. The method of quantification will depend on whether the party removing the minerals knew that he had no right to remove them. If the removal was in error the cost of extracting the minerals forms a legitimate deduction from the value of the minerals. If the minerals were removed in bad faith then such a deduction should not be allowed. I did not derive much assistance from Livingstone v Rawyards in deciding this case.

The pursuer's averments

[16] I will now deal with the factual scenario which the pursuer averred. That is that when carrying out the works in 1993 to facilitate the Faulds Farm development the defenders encroached on to the pursuer's land in order that they might dig it up to replace the pipe leading from 2a Edinburgh Drive to the public sewerage manholes also on the pursuer's land. It must be recalled that Mr Kinnear properly conceded that at the point when the pipe carrying sewage left the curtilage of 2a Edinburgh Drive and entered the pursuer's ground it became a public sewer. As a consequence it vested in Scottish Water and became the property of Scottish Water.

[17] As I understood the pursuer's position he accepted that Scottish Water had a right, indeed a duty, to repair and, where necessary, renew the sewer vested in them. Such is clear from the terms of Section 2 of the Act. In addition by virtue of Section 1(1) of the Act, Scottish Water has a duty to provide such public sewers as may be necessary for effectually draining its area of domestic sewage. Indeed I was told that in 1997 Scottish Water further upgraded the sewage pipe passing through the pursuer's property and the pursuer took no exception to such work. He could not have done so. The defenders submitted that this posed a problem for the pursuer. Mr Sheridan submitted that the damages which the pursuer seeks to recover are based on what he referred to as the "golden key" principle. In other words the pursuer is able to hold up the whole development because he has certain property rights which those advocating the development require in order to bring it to fruition. The pursuer is said to hold the key to the development proceeding. He can hold the development to ransom. The problem for the pursuer is that Scottish Water, or their predecessors, had a duty to do that which the pursuer alleges the defenders did. That duty is imposed by Sections 1 and 2 of the Act. The necessary powers are given by Sections 3 and 4 of the Act. Thus I consider the defenders' argument that the pursuer did not hold the golden key to have merit. If a party, other than the defenders, had a duty and the power to do that which it is alleged the defenders did, then the pursuer might have had some difficulty in holding the defenders to ransom. If he could not hold them to ransom he cannot recover damages on the basis of his present pleadings. He could circumvent this difficulty if he was in a position to prove that Scottish Water would not have upgraded the sewers in 1993. There are no such averments.

[18] Furthermore during the discussion on this part of the case Mr Sheridan referred me to the case of Logan v Scottish Water (Unreported, Extra Division, 1 November 2005). The opinion of the court at paragraph 100 makes it clear that had Scottish Water undertaken the work, rather than the defenders, as the pursuer pleads, the pursuer, in terms of Section 20(1) of the Act would have been entitled to compensation "for any loss, injury or damage" sustained by the exercise of Scottish Water's powers. However, the Opinion of the court in Logan expressly provides that such loss, injury or damage could not extend to payment of damages assessed by reference to a ransom value. I respectfully agree with that opinion. The public interest demands such a conclusion.

[19] Thus on the factual basis pled by the pursuer namely that in 1993 the defenders dug up his ground to upgrade the sewers, the pursuer has certain difficulties. However it may be going too far to say that he could not succeed. Whether the defenders would have been prepared to pay damages on the basis pled might be said to be a question of fact. The defenders' answers to Article 6 are brief. That is because the pursuer's averments of loss are inadequate. Mr Kinnear properly accepted that the specification of loss provided by the pursuer was inadequate for proof on quantum to have been allowed. Had the pursuer otherwise survived the appeal it was agreed that he would be afforded the opportunity to amend his pleadings before any proof on quantum was allowed. The pursuer has not survived the appeal unscathed. In the circumstances I consider that there would be merit in having a further discussion as to whether, standing the opinion I have herein expressed, further amendment should be allowed. The question of expenses can also be dealt with as I was asked to reserve these. If the date assigned is inconvenient please let me know.