APPEAL BY JAMES McLELLAN AND DAVID McLELLAN AGAINST J & D PIERCE (CONTRACTS) LIMITED
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2015] CSIH 80
XA91/14
Lady Paton
Lord Menzies
Lady Clark of Calton
OPINION OF THE COURT
delivered by LADY CLARK OF CALTON
in the Appeal
by
JAMES DAVIDSON McLELLAN and DAVID LINDSAY McLELLAN
Pursuers and Respondents;
against
J & D PIERCE (CONTRACTS) LIMITED
Defenders and Appellants:
Act: McDougall; Nellany & Co
Alt: Lake QC; MacRoberts LLP
10 November 2015
Summary
[1] This is an appeal by the defenders and appellants (“the defenders”) from the judgement of the sheriff of North Strathclyde at Kilmarnock dated 8 May 2014. The sheriff heard evidence in an action by the pursuers and respondents (“the pursuers”) seeking a declarator that they were heritable proprietors of subjects described and delineated in plans annexed to land certificates title numbers AYR16556 and AYR10232. The pursuers also sought an order in the following terms as amended:
“2…..To grant an order requiring the Defenders to reduce and demolish any buildings, erections or other constructions they have erected upon the Pursuers’ said properties all as shown delineated in red on the Plans annexed as relative to the Pursuers’ Land Certificates for the heritable properties at Caledonia Road, Glengarnock and Railbank, Glengarnock Works, Beith, all as more particularly described in the Land Certificates in the Pursuers’ favour being title numbers AYR16556 and AYR10232; to reinstate the Pursuers’ lands to condition they were in prior to said building works; and to grant said order ad interim.”
[2] In the pleadings, the craves of the pursuers are supported by averments that the defenders began certain works and erected certain structures on land owned by the pursuers. The history of interactions between the parties is averred including correspondence between solicitors instructed by the parties. In their answers, the defenders make no admission of encroachment. They defend the action on the basis that esto the defenders have encroached on land owned by the pursuers, it would be inequitable in the circumstances averred by the defenders to ordain the defenders to remove the encroachments. The defenders aver good faith on the understanding that their title included the area in which construction was done and aver that any encroachment would be de minimis.
[3] At proof it was agreed between the parties:
“that the defenders have encroached upon the pursuers’ property in the region of four to six metres. The value of that area of land on the open market is £2500”.
[4] The only evidence led by the pursuers was the evidence of David Lindsay McLellan, the second pursuer. On behalf of the defenders, the evidence of James Pierce described as the retired chairman/managing director of the defenders was led.
[5] Much of the evidence in the case was directed to descriptions of the site both before and after the building works carried out by the defenders, the interaction between the parties and an exploration of the issues relating to the averments relied on by the defenders in defence of the action. No issue was raised before the sheriff by the defenders that the form of the second crave which sought specific implement in terms seeking the removal of the encroachment was incompetent. It was conceded in the appeal hearing by counsel for the defenders that this issue was not a live issue before the sheriff. There was a plea of competency in the defenders’ pleas-in-law but that plea was never advanced on behalf of the defenders to the sheriff. The plea was directed to another issue which the defenders considered had been dealt with.
[6] The sheriff made the following findings in fact and in law:
“1. The Pursuers are the joint heritable proprietors of the subjects at Caledonian Road, Glengarnock, more particularly described in the land certificate, Title Number AYR16556, which was purchased on or about 25 January 1999; and of ground at Railbank, Glengarnock Works, Beith, more particularly described in the land certificate Title Number AYR10232, which was purchased on or about 26 October 2007.
2. The Defenders are the heritable proprietors of the subjects registered in the Land Register of Scotland under Title Number AYR21061 which borders the Pursuers’ subjects. The Defenders Registered Office is at Unit 14, Caledonian Road, Glengarnock. They operate a business from premises located on their subjects.
3. James Pierce, on behalf of the Defenders, approached the Pursuers between June to August 2006 to purchase a piece of land from the Pursuers, which extended about 30 paces from the boundary between the parties’ land into the Pursuers’ land. The Defenders advised the Pursuers they wanted the land to create additional production space for their business and associated access.
4. The Pursuers advised the Defenders verbally on several occasions in July and August 2006 that the land was not for sale. The Pursuers sent correspondence via solicitors to the Defenders on or about 29 August 2006 asking the Defenders not to make direct contact with the Pursuers again in connection with the purchase of the land as they were clear that the land was not for sale. The Defenders built a concrete boundary wall in 2006 which was wholly on their own land.
5. The boundary between the Pursuers’ property and the Defenders’ property was originally marked by a soil bund which was placed by the Defenders onto the Pursuers’ land. The boundary between the properties was delineated by the far side of the bund from the Pursuers’ property, that delineation coincided with the point marked ‘B’ on the Pursuers’ Land Certificate, Title Number AYR16556 (number 5/1/1 of process). The boundary was not delineated by a post and wire fence. The Pursuers walked their boundary land every 3 – 5 months.
6. The Pursuers first realised that there was a possible encroachment on their property in June 2012 as the Defenders had removed the soil bund and replaced it with a concrete boundary wall which was erected along the far side of the bund from the Defenders’ property. The Pursuers instructed a surveyor’s report to clarify the boundary position.
7. The surveyor’s report was that there was an encroachment estimated at 8 metres. The Pursuers contacted their solicitors and instructed them to write to the Defenders to cease all works immediately on 30 August 2012.
8. By August 2012 the Defenders had erected a steel frame for the building they sought to erect on the encroachment site. By September 2012 the building had been roofed despite the instruction from the Pursuers’ solicitors to cease all works.
9. It is agreed between the parties that the Defenders have encroached upon the Pursuers’ property in the region of 4 – 6 metres. The value of that area of land on the open market is £2500.00.
10. The Defenders did not (1) get a surveyor’s report prior to beginning construction, (2) advise the Pursuers of the building works, nor (3) seek planning permission until the works were completed. Retrospective planning permission was granted.
11. The Defenders had tried to purchase land in 2006 from the Pursuers which approximated to the area of land encroached upon in 2012 without success. The Defenders knew the extent of their land registered title. The Defenders acted in bad faith.
Finds in Fact and in Law
The pursuers being the heritable proprietors of the subjects upon which the Defenders have encroached, are entitled to reinstatement of their lands to the condition they were in prior to the commencement of the said building works. Therefore, Grants Decree in favour of the Pursuers against the Defenders in terms of crave 2 of the Initial Writ, together with the expenses of the action; sustains the plea in law for the Pursuers, and Repels the plea in law for the Defenders.”
[7] We note that the sheriff proceeded on the basis of the joint minute that there was encroachment by the defenders onto the pursuers’ land to the extent of four to six metres. The sheriff found that the pursuers are joint heritable proprietors of subjects described in land certificates, title number AYR16556 and AYR10232 and that the defenders are the heritable proprietors of subjects described in title number AYR21061 which borders the pursuers’ subjects. The sheriff in her note recognised that the general law relating to encroachment of heritable property is stringent but does recognise an equitable power in the court in exceptional circumstances to refuse enforcement. The sheriff applied well accepted general principles as summarised in Anderson v Brattisani 1978 SLT (Notes) 42. She concluded that the defenders’ encroachment was not in good faith. In effect the sheriff found that the defenders failed at the first hurdle of the accepted legal test. In these circumstances she refused to exercise the discretion of the court to sanction the defenders’ deliberate action in 2012 in simply building upon land which they attempted to purchase unsuccessfully in 2006.
[8] The original grounds of appeal lodged by the defenders state:
“1. The Sheriff has erred in law in granting Decree in the terms that she did, in that the decree pronounced by her requires the Defenders to remove structures from an area of land which the Sheriff determined at finding in fact four was owned by the Defenders, and the decree is not restricted to the work undertaken by the Defenders in 2012.
2. Having regard to the fact that the land occupied by the Defenders up to the 2006 wall is not in fact all owned by the Defenders, this must have the potential, at the very least, to impact or undermine her findings re the reliability and credibility of the Defenders’ witness, Mr J Pierce.”
[9] Thereafter the defenders obtained leave from this court to lodge a supplementary ground of appeal which states:
“The sheriff erred in granting decree of specific implement in terms which were insufficiently precise to inform the defenders of precisely what acts they must undertake in order to comply.”
It should be noted that the findings in fact of the sheriff were not challenged in any of these grounds of appeal.
Submissions by senior counsel for the defenders
[10] In the first chapter of his submission, senior counsel drew attention to the form of the second crave. He noted that the declarator part which states “To find and declare that the defenders have entered upon said subjects and caused building operations to be carried out thereon without any right, title or interest” had been deleted by an amendment. He submitted that the order to remove in the second crave as amended was an order of specific implement and as such it was essential that it be precise in every respect. He made reference to Fleming & Ferguson v Paisley Magistrates 1948 SC 547 at 557 and 564; Munro v Liquidator of Balnagown Estates Co 1949 SC 49, page 55. The same principle was adopted more recently in Highland and Universal Properties Ltd v Safeway Properties Ltd 2000 SC 297. Counsel acknowledged that in Scotland no penal consequences would necessarily follow a failure by the defenders to comply with the terms of the decree of specific implement, unless it was shown that the failure had been in deliberate defiance of the order of the court. He submitted, however, that the general principle is clear and that precision in terms of the order is essential in the originating court order. In the present case, there was no clarity in the terms of the order. As was plain from the evidence in the case there was a difficulty translating the land certificates to the features on the ground. The exact boundaries on the ground were not clear. The onus was on the pursuers to lead evidence and satisfy the court about the extent of the encroachment. In the order pronounced by the sheriff, it was not possible to identify what was to be removed by the defenders. The necessary precision to inform the defenders of what must be done by them, was not achieved by saying in effect that the pursuers’ boundaries were in the land certificates and the defenders must remove anything built by the defenders within these boundaries. The dispute in this case arose in the first place because of difficulties in translating the land certificate boundaries to the features on the ground. As an illustration of the alleged difficulty, counsel brought to our attention a report obtained by the pursuers dated 19 September 2012. The report states that there were certain factors which made it difficult to plot exactly where the boundary between the sites actually is. Counsel noted that the best efforts of the expert, was to estimate an encroachment of approximately eight metres in circumstances where the parties had agreed approximately four to six metres.
[11] In response, counsel for the pursuers accepted the general principles in the authorities relied on by the defenders. His interpretation was that “the test in determining whether a decree of specific implement is sufficiently clear is one of reasonable certainty”. The satisfaction of that test was to be determined in the facts and circumstances of each individual case. The requisite degree of precision would vary from case to case and prior cases would not necessarily provide guidance as to how the test of reasonable certainty applies. He prayed in aid Highland and Universal Properties Limited, Lord Kingarth at page 317. In the present case he submitted that as the boundaries defined in the land certificates were not disputed and the defenders did not dispute that they had built on the pursuers’ land and thereby encroached upon it, it was not necessary to specify specific parts of the encroachment which require to be removed. The specification in the order of the sheriff in the circumstances of the case was sufficiently precise to satisfy the principles in the established case law.
Decision and reasons
[12] We note that counsel for the defenders candidly conceded that the issue of competency raised in the supplementary ground of appeal was a new issue, introduced in this case at the appeal stage. He accepted that it could and should have been raised before the sheriff by the defenders and any relevant dispute about factual issues explored in evidence. We accept that in principle the issue of competency of the order of the sheriff is one which we are entitled to entertain even at this late stage. Counsel sought to persuade us that in the particular circumstances of this case there was some great difficulty in identifying the boundaries of the parties’ properties and in identifying the encroaching structures. His submissions, on occasion, risked turning into evidence, as he sought to explain the alleged problems. The expert report of the architect referred to by counsel was not agreed as evidence by the parties and the architect who prepared the report did not give evidence. Finding in fact 7 is a finding in relation to the history of events. It is not a finding in fact that there is encroachment estimated at 8 metres. The extent of the encroachment was agreed as a matter of fact in the joint minute by the parties. We note there is no challenge in this appeal to findings in fact 1, 2 and 11. It is plain from finding in fact 8 that the encroachment was built by the defenders. On these findings, we are not persuaded that there is any imprecision in the order of the court. The boundaries of both the pursuers’ and defenders’ lands are specified in the land certificates. The defenders have knowledge of what was built. Finding in fact 11 states that the defenders knew the extent of their land register title.
The first and second grounds of appeal
[13] In the written note of argument for the defenders, the defenders sought to present submissions in respect of the first and second grounds of appeal and to attack the important facts set out in finding in fact 11. Such a submission raised evidential issues as well as new submissions in law which were not foreshadowed in any of the defenders’ grounds of appeal. Counsel for the defenders sought to introduce by amendment a new appeal ground at a late stage in the middle of the appeal. This was opposed by counsel for the pursuers. The court was satisfied that no cause was shown as required by Rule of Court 40.18(3) and refused the defenders’ motion. The court was not prepared to entertain submissions which went beyond the first and second grounds of appeal and the supplementary ground of appeal. Counsel for the defenders accepted that there was a “mismatch” between his note of argument which he had intended to develop and the first and second grounds of appeal. He did not seek to advance the first and second grounds of appeal.
Expenses
[13] It was agreed by counsel that the usual rule of expenses should be applied and that expenses should follow success.
Decision
[14] We are persuaded for the reasons given that there is no merit in the supplementary ground of appeal which is the only ground of appeal left for us to consider. We therefore dismiss the appeal, and uphold the interlocutor of the sheriff dated 8 May 2014. We award the expenses occasioned by the appeal to the pursuers.