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.
Against whom might
the pursuer have a remedy?
[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:-
"The pipes which ran from the Faulds Farm development to the said
manholes within the property at 2a Edinburgh Drive
were 225 mm in diameter. Prior to
reconstruction the manholes had one inflow pipe of 100 mm diameter from
the house at 2a Edinburgh Drive
for foul sewage. The manholes had two
outflow pipes, one for overflow and the other 150 mm in diameter
connecting to and forming part of the public sewer. The said manholes were reconstructed to allow
the said 225 mm pipe to flow into the manholes.
The manhole formed part of the public sewer. On completion of the works the sewage from
the Faulds Farm therefore flowed through the said 225 mm pipes into the said
manholes at 2a Edinburgh Drive
(now reconstructed) and thereafter through the public sewer in Edinburgh
Drive. Upon
connection to the manhole at 2a Edinburgh Drive
the said 225 mm pipes became part of the public sewer from the point at which
it left Faulds Farm. No construction works
took place outwith the property owned by either Ardgowan Estate or by Mr and
Mrs Bownes. No pipes were constructed by
or on the instructions of the first or second named defenders through ground
owned by the pursuer."
[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.
The
defenders' averments
[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:-
"Thus the only part of it (the
pipe system) which is not vested in the local authority in these
circumstances is the part which is situated within the curtilage which it
serves."
[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 3rd 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:-
"Encroachment is the
permanent or quasi permanent intrusion into land which is owned or otherwise
lawfully possessed by another person."
[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:-
"An owner shall not, under the foregoing sub-section, be entitled to
connect his drains or sewers with the sewers or works of Scottish Water unless
the intervening land is land through which the owner is entitled to construct a
drain or sewer."
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.
