Sheriff Court case concerning a property dispute between two neighbours in Contin near Strathpeffer. Mr Munro sought declarator that he owned a small piece of ground (described in the case report as “wedge” shaped) between his property and that of Mr and Mrs Finlayson. The Finlaysons occupied the disputed area as a driveway and garden ground and Mr Munro sought an order removing them from it and an interdict to prevent them from using it in the future.

Background
The sheriff granted declarator to the effect that Mr Munro owned the land but the order removing the Finlaysons from the land was restricted so as to allow the Finlaysons to take vehicular access over the driveway and allow a reasonable turning circle within the garden. The sheriff restricted the order for removal on the basis of the “Anderson v Brattisanni’s principle” which he found entitled the court not to grant an order for removal against a person encroaching on another’s land where:

• the person encroaching has acted in good faith;
• the extent of the encroachment is inconsiderable;
• the encroachment does not materially impair the proprietor in the enjoyment of his property; and
• an order for removal would cause the encroaching party a loss wholly disproportionate to the advantage which it would confer upon the proprietor.

Arguments
Mr Munro appealed against the restriction. He argued that the Anderson principle applied to situations where a structure had been erected on the land rather than where, as with this case, no structure had been built. If he was wrong and the principle did apply, Mr Munro argued that the sheriff had not applied it properly.

Decision
The Sheriff Principal allowed the appeal[1] finding that, although the principle did apply (as there had been encroachment in the building of a driveway and yard), the sheriff had not applied the principle properly. He found that the principle was one which had to be used exceptionally and sparingly and that, in that context, the creation of what would essentially be a servitude right across Mr Munro’s land would be “a step too far”. (If the principle were to be extended to such cases it should be extended in a superior court.)

The Sheriff Principal also agreed with arguments by Mr Munro to the effect that, if he were obliged to keep the disputed land clear (to allow access for the Finlaysons), it would prevent his use of it (noting that it was a necessary inference of the sheriff’s findings that the land could be used for parking and storage) and, as such, the encroachment could not be said to be inconsiderable. The sheriff had found that, if the Finlaysons had to be removed from the property, they would have to incur considerable expense in constructing an alternative access which would be “entirely disproportionate” to the “very marginal benefit” to Mr Munro if they were not to be removed from the property. However, the Sheriff Principal noted that the suggestion that the property provided no benefit to Mr Munro contradicted the sheriff’s earlier conclusions and, more importantly, that, in describing the issue as one of “marginal benefit”, the sheriff had applied the wrong test; the correct test being one of “material impairment”.

The full judgement is available from Scottish Courts here.

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.

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[1] The Sheriff also summarised the current law relating to the “Anderson v Brattisanni’s principle” as follows:

1. The principle is part of the law of civil remedies, not the law of property. In its application it creates no new rights; it merely prevents the proprietor from exercising a right;

2. The principle is an exception based on equitable considerations. (Indeed, in Grahame v Magistrates of Kirkcaldy the Lord Chancellor compares it favourably to the law of equity as practised by the English Court of Chancery (at p 96).);

3. The party seeking its application must have acted in good faith, or as in Grahame v Magistrates of Kirkcaldy not done so but thereafter had taken steps to remedy its previous failings;

4. The principle will be applied only sparingly and in exceptional circumstances;

5. It has, to date, been applied only in cases where the encroachment was by a physical thing, such as a gable wall or an extractor flue attached to a wall;

6. The encroachment must be inconsiderable and does not materially impair the proprietor in the enjoyment of his property, by which is meant his property as a whole and not the piece of ground which has been encroached. Indeed, in all the authorities before Anderson v Brattisanni’s the piece of ground upon which the thing was constructed was lost altogether;

7. Its removal would cause to the encroacher a loss wholly disproportionate to the advantage which it would confer upon the proprietor. In calculating that advantage the court will take into account whether or not the encroaching party has offered compensation or, if not, whether it is open to the court on the evidence to fix a value for reasonable compensation;

8. Future as well as past economic loss will be taken into account.