Walter Sim Malcolm and others against Kevin William Paton and another (Sheriff Court Civil) [2025] SCHAM 55 (04 June 2025)

Walter Sim Malcolm and others against Kevin William Paton and another (Sheriff Court Civil) [2025] SCHAM 55 (04 June 2025)

Failure to comply with the burden by erecting a boundary wall without neighbour consent would result in material detriment to the pursuers' enjoyment of their properties, given the open-plan character of the estate, the mutuality and certainty of the deed of real burdens, and the likelihood of further similar developments. The pursuers have both title and interest to enforce the burden, and interdict is granted.

Citation
[2025] SCHAM 55
Parties
Pursuer: Walter Sim Malcolm; Pursuer: Doctor Susan Jennifer Malcolm; Pursuer: John Joseph Heenan; Pursuer: Katrina Heenan; Pursuer: Erik Jan Van Der Marel; Pursuer: Kirsty Ann Van Der Marel; Defender: Kevin William Paton; Defender: Ann Marie Marion Paton
Jurisdiction
Scotland
Judgment Date
04 June 2025
Procedural Posture
Civil Interdict / Final Judgment
Outcome
interdict granted
Legal Topics
Enforcement of Real Burdens, Community Burdens, Neighbour Consent, Material Detriment, Interdict
Property Law Real Burdens Scottish Title Conditions Enforcement of Real Burdens Community Burdens Neighbour Consent Material Detriment Interdict

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Parties

Walter Sim Malcolm

Pursuer

Doctor Susan Jennifer Malcolm

Pursuer

John Joseph Heenan

Pursuer

Katrina Heenan

Pursuer

Erik Jan Van Der Marel

Pursuer

Kirsty Ann Van Der Marel

Pursuer

Kevin William Paton

Defender

Ann Marie Marion Paton

Defender

Procedural Posture

Civil Interdict / Final Judgment

Legal Issues

  1. 1 Whether pursuers have interest to enforce real burden under Title Conditions (Scotland) Act 2003 s.8(3)(a)
  2. 2 Whether erection of boundary wall without neighbour consent constitutes material detriment to pursuers' enjoyment of their properties
  3. 3 Whether interdict should be granted to prevent erection of boundary wall contrary to deed of real burdens

Ratio Decidendi

Failure to comply with the burden by erecting a boundary wall without neighbour consent would result in material detriment to the pursuers' enjoyment of their properties, given the open-plan character of the estate, the mutuality and certainty of the deed of real burdens, and the likelihood of further similar developments. The pursuers have both title and interest to enforce the burden, and interdict is granted.

Court Disposition

interdict granted

Orders

  • Defenders and anyone acting on their behalf or instruction are interdicted from erecting a boundary wall at 18 Gadwall Grove, Motherwell, ML1 2FQ, for such time as Rule 9.1 of the Deed of Real Burdens subsists and is not discharged or varied by the Lands Tribunal of Scotland.
  • Defenders found liable to pursuers in expenses of the action as taxed.