Head 23: Neighbour Law

Question 1

*Anderson v Brattisanni’s 1978 SLT (Notes) 42

Encroachment

Answer 1

 The owner of the fish and chip shop attached an internal flue up the tenanment wall to take away the smell of the fish and chips,
 Person who owned part of the tenement wall objected.

Question 2

Duke of Buccleuch v Magistrates of Edinburgh (1865) 3 M 528

Defence of consent/implied consent

Answer 2

 The pillars encroached onto the pavement.
 Magistrates took action against the duke of Buccleuch.
 No objection was raised until 30 years after the construction.
 Court held this was far too late to object.

Question 3

Anderson v Brattisanni’s

remedies - removal of encroachment.

Answer 3

• Wall which the flue went up was windowless and it could not be seen from the objectors property.
• The flue was also essential to extract the fumes and smells from the shop.
• The court accepted that it was impractical for it to be located elsewhere.
• Without the flue the shop could not function under health and safety law.
• The flue had been in place for 9 years.
• Permission of it had been granted by the owner’s predescesor.
• *Whole number of reasons which persuaded the court to not order the flue to be removed.
  (they could pay damages instead)