GORDON MUNRO AGAINST WALTER FINLAYSON AND CATHERINE FINLAYSON AND GARETH INCE AND EMMA BILSLAND [2015] ScotSC 16 (02 March 2015)

GORDON MUNRO AGAINST WALTER FINLAYSON AND CATHERINE FINLAYSON AND GARETH INCE AND EMMA BILSLAND [2015] ScotSC 16 (02 March 2015)

The equitable principle from Anderson v Brattisanni’s does not extend to the creation of an irredeemable servitude right of vehicular access over land; the encroachment by driveway and yard materially impairs the pursuer's enjoyment of property and is not inconsiderable; the sheriff erred in applying the principle to these facts and in conducting a balancing exercise based on marginal benefit rather than material impairment.

Citation
[2015] ScotSC 16
Parties
Pursuer and Appellant: Gordon Munro; First Defender and Respondent: Walter Finlayson; First Defender and Respondent: Catherine Finlayson; Second Defender: Gareth Ince; Second Defender: Emma Bilsland
Jurisdiction
Scotland
Judgment Date
02 March 2015
Procedural Posture
Civil Appeal / Appeal From Sheriff's Interlocutor
Outcome
Appeal allowed; sheriff's interlocutor recalled and varied; pursuer's pleas sustained; defenders' plea repelled.
Legal Topics
Encroachment, Equitable Remedies, Heritable Property, Positive Prescription, Servitude Rights
Property Law Civil Remedies Encroachment Equitable Remedies Heritable Property Positive Prescription Servitude Rights

Case Brief

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Parties

Gordon Munro

Pursuer and Appellant

Walter Finlayson

First Defender and Respondent

Catherine Finlayson

First Defender and Respondent

Gareth Ince

Second Defender

Emma Bilsland

Second Defender

Procedural Posture

Civil Appeal / Appeal From Sheriff's Interlocutor

Legal Issues

  1. 1 Whether the equitable principle from Anderson v Brattisanni’s applies to encroachment by driveway and yard rather than buildings
  2. 2 Whether the encroachment materially impairs the proprietor's enjoyment of property
  3. 3 Whether removal of encroachment would cause disproportionate loss to defenders

Ratio Decidendi

The equitable principle from Anderson v Brattisanni’s does not extend to the creation of an irredeemable servitude right of vehicular access over land; the encroachment by driveway and yard materially impairs the pursuer's enjoyment of property and is not inconsiderable; the sheriff erred in applying the principle to these facts and in conducting a balancing exercise based on marginal benefit rather than material impairment.

Court Disposition

Appeal allowed; sheriff's interlocutor recalled and varied; pursuer's pleas sustained; defenders' plea repelled.

Orders

  • First defenders and their tenants or others deriving right from them to remove from Area 1 within one month as delineated in plan 5/1/1 and Disposition dated 11 March 2011.
  • First defenders liable to pursuer in expenses of appeal and action.