In 2008, Pollock purchased an area of ground from the Scottish Ministers who retained the adjacent land, which was earmarked for development. The Disposition to Pollock granted express rights to the Scottish Ministers to use and maintain all existing services passing through a defined ‘service strip’ on the land sold to Pollock. A right to install and use new services passing though the service strip was also reserved.

In 2014 the Scottish Ministers sold part of the adjacent land to Drogo Developments. Drogo Developments installed two drainage pipes across Pollock’s land to replace one pipe referred to as the ‘main drain’. The two drainage pipes did not follow the route of the pre-existing pipe and were not within the service strip.

Pollock contended that the installation of these pipes constituted a wrongful encroachment on their land. They sought declarator of this, and also an order for removal of the pipes or alternatively to them of the sum of £150,000.

Decision

The Court held that Pollock was entitled to declarator that Drogo Developments had wrongfully encroached upon their land.

There is a general rule that servitude rights must be exercised in the manner least burdensome to the affected property. The Court noted that altering the route of an established servitude conflicted with this general rule, and that in the present case Drogo Developments did not have a right to alter the route of the established services. Not only had no express right to do this been granted, but the common law did not provide such an entitlement to Drogo Developments either.The pre-existing ‘main drain’ was covered by the section of the Disposition which granted the ancillary rights necessary to maintain such existing servitudes, and so Drogo Developments was confined to the route taken by this pre-existing pipe.

Replacement and re-routing of the main drain could not be considered synonymous with 'renewal', which would have been permissible as an act of maintenance and had been expressly referred to in the Disposition, along with rights to 'alter' and 'enlarge' the main drain.

Drogo Developments had argued that Pollock were personally barred in that they had not initially raised a Court action and therefore had acquiesced to the new pipes. Drogo Developments also argued that Pollock had not suffered a loss. The case was referred for further procedure to decide the orders to be made consequent to the decision and to ascertain the nature and scope of the dispute about the appropriate remedy. The questions of personal bar, and whether any material prejudice had actually been suffered by Pollock are still to be considered and decided. The remedy to be awarded, if any, remains to be seen.

The case provides authority for the proposition that where express provision has been made for a servitude of use or access following a particular route, that route must be taken. Replacing a pipe using a different route cannot be considered to be synonymous with repair or renewal of an existing pipe.