Black v. Duncan & Anor [2011] ScotSC 30 (17 May 2011)

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SHERIFFDOM OF

GRAMPIAN HIGHLAND

AND

ISLANDS

AT

ABERDEEN A958/09

INTERLOCUTOR in causa MRS ELSIE BLACK, residing at 12 Mastrick Drive , Mastrick, Aberdeen , AB16 6TY . Pursuer against FRANK DUNCAN and MRS DUNCAN, both residing together at Mastrick Drive , Mastrick, Aberdeen , AB16 6TY . Defenders _______ Act: Purdie Alt: Anderson

ABERDEEN , 16 May 2011. The sheriff, having resumed consideration of the cause, Finds the following facts as admitted or proved. (1) The pursuer is Elsie Jane Black who resides at 12 Mastrick Drive , Aberdeen , AB16 6TY . The pursuer is heritable proprietor to the extent of a one half pro indiviso share of subjects, 12 Mastrick Drive , Aberdeen . Her title thereto is registered in the Land Register of Scotland under title number ABN 75747, registered on 19 October 2004 . (2) The defenders are Frank Duncan and Mrs Duncan, both residing at Mastrick Drive , Mastrick, Aberdeen , AB16 6YT . The defenders are heritable proprietors of those subjects. (3) Each party's title gives the respective heritable proprietors a joint or common right of property in, inter alia, the mutual drying green which is coloured green on the plan annexed to the pursuer's title (production 5/1/1). (4) The pursuer's said Land Certificate contains a burden which states, inter alia, "The said garden ground behind said building line shall be used exclusively as ornamental or garden ground or as a drying green for bleaching or drying clothes and for no other purpose whatsoever". (5) At a point prior to 2008, the defenders erected a post and mesh fence which divided the drying green into two parts. Production 5/4/1 is two photographs depicting that fence. That fence was erected without the consent of the pursuer

or her co-heritable proprietors. No formal objection was then taken to the erection of the said fence and no request was made of the defenders to remove it. (6) On 26 June 2008, solicitors acting for the pursuer wrote to the defenders in response to correspondence from them stating, inter alia, "However, in our attempt to have some form of compromise with you, our clients have advised that they are willing to allow you to erect a large fence as a replacement for the current fence on the shared drying green. This would allow you to continue using the area of ground for your puppy, without impinging on the remaining areas of the shared drying green. We would, however, also advise, that as the area which is fenced off remains part of the shared drying green, our clients will be entitled to use that ground should they require." (Production 6/1/1 ). (7) The content of any earlier correspondence is not known. (8) In or about November 2008, the defenders proceeded to instruct contractors to remove the existing post and mesh fence and to erect a large metal fence. Said fence was erected on a different line to the earlier fence. It significantly increases the area of the drying green fenced to the side of the defenders' property. It includes a new part returning along the line of the path behind the defenders' property with an unlocked gate across that path. Production 5/1/2 is

two photographs depicting the new fence. (9) The pursuer observed the construction of the fence and contacted her solicitor. She was then advised not to intervene and to leave matters until the construction was completed. (10) No formal objection was raised by the pursuer either directly or through her solicitor until 10 December 2009 when the present action was served on the defenders. (11) By letter dated 21 January 2010 , solicitors for the pursuer wrote to solicitors for the defender, inter alia, withdrawing the pursuer's offer to consent to a replacement of the earlier post and mesh fence, said offer not having been accepted by the defenders. (12) The pursuer has not consented to the erection of the present fence on the common drying green. (13) The defenders presently use and intend to continue to use the drying green for the purpose of their dogs exercising, defecating and urinating. Finds in fact and in law :- (1) The pursuer, as a one half pro indiviso heritable proprietor of subjects, 12 Mastrick Drive, Mastrick, Aberdeen, is entitled to full and unfettered use of the common drying green behind her property, subject only to the conditions set out in her title. (2) The pursuer, as a one half pro indiviso heritable proprietor of subjects, Mastrick Drive , Mastrick, Aberdeen , is entitled to interdict to prevent the erection of a fence on the common drying green, without

the permission of all the heritable proprietors. (3) The pursuer, as a one half pro indiviso heritable proprietor of subjects, Mastrick Drive , Mastrick, Aberdeen , is entitled to insist upon the removal of the fence erected on the common drying green, without her permission, by or on behalf of the defenders. (4) The use of the drying green by the defenders for the purpose of their dogs exercising, defecating and urinating is not a normal or a reasonable use thereof. (5) The defenders having intimated their intention to continue to use the drying green for the purpose of their dogs exercising, defecating and urinating, the pursuer is entitled to interdict to prevent such use. Accordingly , Sustains pursuer's pleas-in-law number 1, 3 and 5; Reserves for further consideration pursuer's plea-in-law number 4; Repels defenders' pleas-in-law 1, 2 and 3 And therefore, (1) Interdicts the defenders from erecting fencing on the common drying green pertaining to number 10 and 12 Mastrick Drive, Mastrick, Aberdeen, without the prior permission of all heritable proprietors thereof; (2) Ordains the defender to remove the fencing presently situated on the common drying green pertaining to numbers 10 and 12 Mastrick Drive, Mastrick, Aberdeen and that within forty two days of the date hereof; and failing its removal within said period grants warrant to the pursuer to have the said fence

removed; (3) Interdicts the defenders from allowing dogs to exercise, defecate or urinate on the said mutual drying green; (4) Reserves the pursuer's claim for any costs incurred in the removal of said fence; (5) Reserves the issue of expenses and fixes a hearing thereon at 9.45 a.m. on 18 May 2011 NOTE: [1] This is an action between neighbouring heritable proprietors, the owners of certain common property including a drying green situated to the rear of their premises. The pursuer seeks two interdicts and an order for removal and restoration. The action was commenced in December 2009 and after sundry procedure called before me for proof on 7 February 2011 . [2] The pursuer gave evidence on her own behalf. She produced the Land Certificate relating to her home (production 5/1/1 ) from which it can be seen she is a one half owner of subjects, 12 Mastrick Drive , Aberdeen . Part of her title gives her a joint or common right of property in the mutual drying green which is shown coloured green on the plan attached to her title. She identified the photographs lodged. Production 5/1/2 is two photographs of the situation as at present and Production 5/4/1 is two photographs of the situation prior to November 2008. She confirmed that at no time had she consented to the erection of the green metal fence presently dividing the drying green. She stated that neither she nor her now

deceased husband had consented to the fence previously erected across the drying green but they had not complained about it. She agreed that after discussion with her solicitor she had instructed that they write agreeing that a more substantial fence could be put up in place of the first fence. She had been agreeing to a replacement. When the new fence had been erected it had not been in the same position having added three feet or so to the area on the defenders' side of the fence. It was clear from her evidence that the parties did not speak and indeed she appeared intimidated by the defenders. Although she was aware that she had a right to use the green on both sides of the fence she did not seek to do so stating that she had been told by the defenders not to use what they described as their side of the green. [3] The defenders have two dogs. She did not have any particular difficulty with the dogs but would not use the drying green if the dogs were there. She also pointed out that they burned the grass which can clearly be seen from the first of the two photographs. (production 5/1/2 ) She understood that the drying green should be used for putting washing out and no other purpose. She did not wish it to be used by the dogs. She did not wish it to be divided. [4] Under cross-examination, she insisted that although the defenders had raised the issue of erecting a small fence

with her solicitor she and her late husband had not given permission. They had not replied and the defenders had taken that lack of reply as consent. That having been done she had indicated that she was prepared not to object to a larger fence being put up on the same line. It was suggested to her that the letter dated June 2008 written on her behalf by solicitors was a letter giving permission for the construction of the new fence. She confirmed that she had agreed for the old fence to be replaced but in the same place. She accepted that she had seen the fence being erected. She had spoken to her solicitor and been told not to try to stop it going up and that her complaint could be taken up once it was completed. She had accepted that advice. It was for that reason that the court proceedings had not been commenced until late 2009. She confirmed that the defenders had told her that she should not use the ground on the other side of the gate and that it did cause her inconvenience as it restricted the area she could use for hanging out washing. The new fence would also prevent maintenance on her shed. She accepted that the fence did prevent the dogs using the whole of the green. It was her position that the dogs should be using no part of the green. There had been incidents which confirmed her position that she was not supposed to use that part of the green on the defenders'

side of the fence. [5] Evidence for the defender was led from the female defender, Mrs Duncan whose christian name has, for some reason, not been disclosed in the present proceedings. She confirmed having resided at 10 Mastrick Drive , Aberdeen since August 1999. She accepted that the drying green was a shared green initially used by both parties. She claimed there to been a compromise whereby the fence would be erected to enable them to keep their then one dog to one side. She could not recall whether there had been any specific permission for the erection of the post and mesh fence. That fence did have difficulties as it did not protrude right up to the wall and required to be partially removed whenever access was required along the path. They decided that a more permanent fence should be erected and wrote to the pursuer's solicitors seeking agreement. They did not speak with the pursuer. She considered that there were three options and believed these had been offered to the pursuer. These were a legal split of the garden, the erection of a fence to restrict the use of the garden by her dogs and no fence leaving the dogs free reign in the garden. She was uncertain about the correspondence which had passed. It was her position that a letter had been sent to the pursuer's solicitors with a plan showing the proposed line of the fence but she accepted that she did not think that

the letter dated 26 June 2008 (production 6/1/1) had been in response to that letter. She had, however, taken from that letter that there was permission for them to erect the fence. Notwithstanding her uncertainty regarding the plan she thought that it could be erected according to that plan and that there was no restriction about it being erected on the same line as that which it replaced. They had proceeded to instruct tradesmen, at considerable cost, and the fence had been erected. They had been careful to erect an easily opened gate to facilitate access to both sides and along the path. The fence would not cause any difficulty with regard to work on the pursuer's shed as panels could easily be removed to facilitate that exercise. She did not believe that the fence unduly restricted the pursuer's washing arrangements. She confirmed that she walked her dogs at around 8.30 a.m. most mornings, at lunchtime and at night. They were not left to roam outside all day. She considered that they had permission from the pursuer to carry out the erection of the new fence. [6] Under cross-examination she accepted there was joint or common ownership in the drying green and that this meant that each party could use all parts of it. She accepted that the fence itself did prevent use of the ground directly underneath it. She could not explain being unable to produce the plan to which she

referred. She did not understand replacement to mean that the fence had to be on the same line as the old fence. In any event there was not, in her opinion, a considerable difference. She accepted that there may have been a level of misunderstanding but pointed out that there was no rejection of the plan which they had sent. She indicated that she would not have had the fence erected had she thought there was no permission. She did not agree that the pursuer had been told she could not use the other side of the green nor did she agree with the terms of the incidents spoken to by the pursuer. She conceded that the green was used for the dogs toilet needs. There was nowhere else for them to go at certain times. If the fence were to be removed the dogs would then be able to use the whole of the grass area. There was no further evidence for the defenders. Submissions [7] The pursuer's solicitor sought briefly to summarise the law of common property with reference to Gordon, Land Law, second edition, page 424, paragraph 15-15 and with reference to Bell's Principles as there narrated. It was necessary for the pursuer to consent to any alteration to the common property. All proprietors must agree. There was no agreement here. There was no other legal basis for the erection of the fence. Accordingly, craves 1 and 2 should be granted. [8] He referred to the nuisance factor which dogs

may create. The fence restricted the dogs from using the whole of the green. In evidence Mrs Duncan had made it clear that she would continue to use the green for dog fouling purposes even if the fence were to be removed. The pursuer was apprehensive therefore that removal of the fence would result in the dogs being allowed to enter and foul the garden. With reference to Bell 's Principles, it was clear that the definition of nuisance was a wide one. Here allowing dogs to foul a common green was a clear nuisance. It would cause discomfort to the pursuer and stench. There were issues of hygiene. It was an inappropriate use of a drying green. The suggestion that there was nowhere else for the dogs to go was not a defence. It was not a reasonable use of land in the circumstances. The interdict third craved should be granted. [9] The pursuer's solicitor made it clear that it was his position that where, with regard to common property, an agreement had been reached and acted upon it could not be retracted. Whilst I have severe doubts about the general application of that proposition that is the basis on which this action has been raised and argued. [10] On the facts, he submitted that there was no agreement between the parties. The pursuer had been prepared to compromise her position and allow a replacement fence but the defenders had proceeded to put a fence up in a

different location. The defenders' definition of replacement was clearly not correct. There was no consensus. The pursuer had been entitled to clarify her position and withdraw any agreement to the erection of a fence which she had done by means of the solicitor's letter dated 21 January 2010 ( production 5/2/1). The agreement had now been withdrawn. The pursuer's rights were being denied. She encountered problems with her washing and could not use the area on which the fence was erected. He submitted that a twenty one day period was a reasonable one for restoration. [11] After some discussion he conceded that the wording of crave two was inappropriate as if granted in terms, it would require the defenders to re-erect the original post and mesh fence. He sought and was granted leave to amend the crave. He further sought and was granted leave to amend his fifth plea-in-law removing the allegation of breach of burdens and substituting an allegation of nuisance. [12] On expenses, he moved for expenses submitting that the amendment issue was nothing other than a technical issue and that the case remained the same in broad terms. It did not materially change the position nor what was requested of the defenders. Expenses should be awarded in favour of the pursuer as taxed. [13] The defenders' agents submitted that on a reasonable view of the situation and letters from solicitors the

defenders had received permission to erect the fence. It was the defenders' position that there had been a plan of the fence which had been circulated and given her appearance as a reliable and credible witness that should be accepted. There had been a breakdown in relationships between the parties and communications were therefore through solicitors. It was the pursuer's stated position that once an agreement had been made it could not be withdrawn. Here an agreement had been made, it had been fulfilled and could not now be withdrawn. He referred to Stairs Encyclopaedia, paragraph submitting that the action came too late. The pursuer was personally barred as she knew of the alteration. It had involved a substantial payment of money and had been completed without her taking any steps to prevent its construction. There was no evidence of any objection to the fence until the action was raised in December 2009 and the letter withdrawing the offer sent in January 2010. The alteration had been in existence for over one year by that point. [14] He opposed the pursuer's amendments on the basis that they did alter the action, particularly that in plea-in-law number 3, and accordingly the defenders had not had fair notice of the claim against them. He referred to Gordon, Land Law, paragraph 15 - 15 . Each proprietor was entitled to make a normal use of the property. It was only

extraordinary uses which were not permitted. He submitted that the use of a garden for toileting of pets was a normal usage. The defender, in evidence, had spoken to clearing up after her dogs. Again, no objection had been taken to the use of the green by the dogs. It was clear from the pursuer's evidence that she considered that what had happened here was that the green had been split and that she could only use one side when, however, it was fully accepted by the defenders that the pursuer had every right to go through the gate and use both sides. There was no foundation in her claim that the fence restricted her in hanging out her washing. There was equally no foundation with her claim that the fence would prevent proper maintenance of her shed. There was no basis for interdict. [15] On expenses, he submitted that even if unsuccessful the pursuer should not be found liable to expenses. What had emerged at the end of the hearing was a different case to that which had been raised at the outset. My Decision [16] The issues in this case are reasonably clear. Both parties accept that they are proprietors of common property and both accept that both parties must agree on the nature and extent of any use to be made of that common property. It is, I think, well established that every co-proprietor is entitled to make use of every part of the property, sometimes expressed as every

inch. It is clear that the erection of a fence by one co-proprietor without the consent of another will breach that other party's rights to use of that area which is covered by the fence quite irrespective of the issue of whether or not an attempt is made to prevent the use of the area behind the fence. The issue here is whether or not there was or is consent. Whilst it is my understanding of the legal position that in such a situation an agreement, depending upon its terms, may be terminable at will, that is not the position of the pursuer in this case and I do not, for the purposes of this case, require to further consider that point. I also note in passing that the pursuer is only the holder of a one half pro indiviso share in subjects, 12 Mastrick Drive, Aberdeen and there has been no suggestion whatsoever that the proprietors of the other one half share, presumably her relatives, have consented to any of the activity on the drying green. Again, however, this is not part of the pursuer's case and I do not therefore take it into account. [17] The principal issue here is clearly one of consent. The pursuer says she has not given consent. The defender says that she has. I am satisfied that there is no evidence that the pursuer consented to the erection of the first fence. She was adamant that she had not nor had her husband who was alive at that point. Mrs Duncan, in her

evidence, was extremely vague on that point and seemed to accept that it was at least possible that having asked for permission and received no response they had only presumed there to be consent. Thereafter, the pursuer had accepted the position, although only to the point of not requiring its removal and had agreed to a replacement fence being erected. I do not consider that consent can be achieved by presumption. There is no basis for the view that there was any consent, at least, up to the point where the pursuer does indicate in writing that she is prepared to consent to a replacement fence. It does not appear to be any part of the pursuer's case that she would have required the defenders to remove the post and the mesh fence had it remained nor indeed that she would have sought removal of the new fence had it been properly sited. That is a matter of significance when considering the detail of any interdict. [18] Having considered parties' submissions and the terms of letter production 6/1/1 , dated 26 June 2008 , I am entirely satisfied that the consent which was being offered to the defender was to put up a new fence on the line of the old fence and nothing more. Following the ordinary meaning of replacement it required the new fence to be placed where the former fence is placed. Any other interpretation is clearly wrong as it would entitle the defenders to put a fence

anywhere on the premises. I am entirely satisfied therefore that the defenders did not have the pursuer's permission or consent to put the fence in its present position. [19] That leaves the issue, raised in submission, of personal bar. The defenders do not plead personal bar and it is therefore not open to me to make such a finding in their favour. I would, in any event, not have upheld such a plea had it been contained within the defenders' pleadings. The pursuer did accept that she had witnessed the erection of the fence, that she had not sought to intervene and that she had taken a considerable time to intimate her objection. She explained that this was based on the legal advice which she had received. It is highly unfortunate that she chose to go about matters in that way but I do not consider that the detail of this case combined with the length of time involved amounts to a situation where she would be barred from enforcing her right of common ownership. The dynamics of the situation are such that it is highly unlikely that any attempt at immediate personal intervention would have been successful. This relates to rights in heritable property. The defenders were aware of the necessity for consent. They chose to proceed in a way which clearly breached such consent as they had received, which they knew to be a compromise position on behalf of the pursuer. The delay in

formal objection, while unfortunate, is not such as to justify the loss of the pursuer's heritable rights. [20] It is appropriate that the defenders be ordained to remove the fence and interdicted from any further erection without consent. It is not appropriate that the wording of the decree follow the precise terms of the craves of the Initial Writ. They make reference to a plan which is said to be produced but which is not produced. I have therefore amended the order accordingly. The second crave, before amendment, sought to require restoration of the green to the condition it was in prior to the defenders' stated interference. Taken with the content of the Record, whereby no objection is raised concerning the earlier fence, that would involve the defenders being required to reinstate that fence which they may or may not wish to do and which, in view of the interdict which I have granted in terms of crave 3, may be a pointless exercise. When this was drawn to the attention of the pursuer's solicitor he sought to amend the wording of the crave and I allowed such amendment. I have formed the view that a period of 42 days is a reasonable one to facilitate the removal of the fence. I consider the pursuer's suggested period to be too short. The defenders made no suggestion. [21] This situation then raises difficulties with the interdict first craved. Such interdict prevents the

defenders from re-erecting the earlier post and mesh fence which on one view is something which they ought to do. I have accordingly qualified the interdict to allow erection with consent. In any event I am satisfied from the evidence of Mrs Duncan that she now fully understands that she cannot proceed without permission and that such permission requires to be clear and cannot involve an attempt to stretch the ordinary meaning of language. [22] It was, I think, accepted by both parties that in absence of any agreement to the contrary, co-owners of common property may make only ordinary use of the property. That it seems is an issue to be determined from the nature of the property. I have little difficulty in coming to the view that the use of a drying green for exercising or toileting of dogs is not an ordinary use. I have little difficulty in coming to the view that it is an extraordinary and unacceptable use of common property. The pursuer should not be subjected to the attention of the defenders' pets when endeavouring to make proper use of the drying green. She certainly should not be subjected to the health and safety hazards created by dog fouling. It was clear from the evidence of Mrs Duncan that she did regard this as an acceptable use of the common property although on one view her efforts to fence off an area appear to amount to a tacit acceptance that it would be

unreasonable for her neighbour to be subjected to this situation. If looked at in terms of nuisance I am of the view that this activity is unquestionably a nuisance within the normal definitions of the term. I agree with the pursuer's agent that the suggestion that there is nowhere else to put the dogs is no defence to this situation. Indeed, although I may be wrong, it appears to me that the defenders could easily create a dog run on their own exclusive ground area, which is currently occupied by a patio. I am satisfied therefore that it is appropriate for interdict to be granted although the interdict requested should be restricted to the purpose of exercising or allowing dog fouling by defecating or urinating. I have made the order accordingly. [23] There remains the issue of any removal costs which may be incurred by the pursuer in the event of non compliance by the defenders. I do not consider that I can make any such order in general terms so that will require to wait until the removal has been undertaken. I have therefore reserved that part of the pursuer's claim. [24] Both parties submitted on expenses. The outcome of this action is not entirely straightforward and there are a number of factors relevant to the consideration of an award of expenses. I consider that parties should have the opportunity to address me further on this point and have put the case out for a

hearing thereon. It may be appropriate to reserve expenses further until the issue of any removal costs which may be incurred by the pursuer has been resolved and the action is finally concluded. Sheriff of Grampian Highland and Islands at Aberdeen . 16 May 2011. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII URL: https://www.bailii.org/scot/cases/ScotSC/2011/30.html