Sheriff rules homeowners can block corner neighbour from building boundary wall and gate

About this case:

• Citation:
  [2025] SC HAM 55
• Judgment:
  External link
• Court:
  Sheriff Court
• Judge:
  Sheriff Mungo Bovey KC

The six pursuers, all residents of Gadwall Grove in Motherwell, raised an action against Kevin and Ann Paton seeking to enforce the real burden registered over the development in December 2010. The defenders argued that the pursuers had no interest to sue and that the enforcement of the burden in this case would be unfair and unreasonable.

The case was heard in Hamilton Sheriff Court by Sheriff Mungo Bovey KC. Boffey, advocate, appeared for the pursuers and Breen, advocate, for the defenders.

Neighbour consent

The development in Motherwell of which Gadwall Grove formed a part was designed by the housebuilder CALA and consisted of approximately 70 properties. Title to the parties’ properties was subject to a Deed of Conditions and a Deed of Real Burdens, both registered in December 2010. Clause 9 of the latter stated that no additional boundary walls, fences or hedges should be erected anywhere on a plot without “Neighbour Consent”, defined as the prior written consent of the proprietors of any plot within 30 metres.

On 15 December 2021, the defenders were granted planning permission by North Lanarkshire Council to construct a front boundary wall and electric gate at 18 Gadwall Grove. They did not seek prior written consent from the pursuers for the construction of the intended wall, nor did the pursuers give their consent, as they considered that the construction of the wall would result in material detriment to their enjoyment of their properties. Several of the pursuers in their evidence stated that the limitations of the scheme were part of what attracted them to move there.

In his evidence, the first defender stated he wanted to build the wall to secure his premises against people cutting the corner and prevent dogs from fouling his grass. He accepted that he knew of the need for neighbour consent when objections to his planning permission came in 2021 but had not sought it because in his view others in the plot had not followed the requirement, citing walls erected at the nearby Lapwing Crescent.

Counsel for both parties agreed that the case turned on whether the pursuers had interest to pursue their action, and interdict fell to be granted if this was established. The pursuers focused on the test of material detriment to enjoyment, while the defenders argued that the burden had already been breached in the development as to make it unfair to enforce it in this case.

Effect on appearance

In his decision, Sheriff Bovey said of the defenders’ motivations: “Notwithstanding the lack of any well-trodden paths, I accept that people cut across the front of the defenders’ property. I also accept that this gives rise to dog mess pollution of the defenders’ property. These seem to be perfectly valid reasons for what they want to do. But, having a good reason for what they want to do is irrelevant to the only issue before me namely the pursuers’ enjoyment of their properties.”

He continued: “There is force in Ms Breen’s submission that the pursuers are not all in the same position; the fifth and sixth have the intangible benefit of the prospect of informal use of their neighbours’ front area when relations permit. I do not consider this a sufficient distinction to affect the decision. Some of the pursuers’ concerns about the proposal I do not accept. However, I do accept that the erection of the wall and gate would have a significant effect on the appearance of the street. I certainly accept that it would lead to others doing the same.”

Considering the evidence on the nature of the development, Sheriff Bovey said: “I accept the assessment of the pursuers that the development is markedly open in its layout. The extent to which there are walls and hedges does not affect this overall conclusion, particularly in Gadwall Grove which is the relevant part of the estate. The pursuers’ oral evidence placed strong emphasis on the mutuality of the Rules in the Deed of Real Burdens in the context of the community they find themselves sharing.”

He concluded: “A second aspect to the community repeatedly relied upon was the certainty that the deed gives in providing Rules to which one subscribes when buying. These features weigh significantly with me in a decision which, on the face of it, concerns a minor matter. The feeling that the regime of Rules on which they all bought is of no effect will also detract from the pursuers’ enjoyment. I conclude that in the circumstances of this case, failure to comply with the burden will result in material detriment to the pursuers’ enjoyment of their ownership of their homes.”

The sheriff therefore found that the pursuers had title to enforce the burden and granted the interdict sought.