Encroachment, discretion and the public interest

Where a person builds in such a way that the structure encroaches on neighbouring land, this raises a difficult issue for the law. The reason for the difficulty is that there is an inherent tension between two perspectives. On the one hand, an owner is generally entitled to control what happens on his or her land, and is certainly entitled to resist attempted intrusions by those with no right to use or be on the land. On the other hand, once the encroaching structure is complete or substantially complete, it may easily be seen as disproportionate for the court to order its demolition. This is particularly the case where the encroachment is minimal in extent; where removal would require demolition work out of proportion in scale and cost to the value of the land lost to the owner; and where the encroachment happened because of an error made in good faith by the encroacher.

Different approaches to the problem are possible. In Scots law, it is well established that the victim of the encroachment is in principle entitled to insist on removal, but that the court asserts a discretion to refuse that remedy in appropriate cases. One issue that has received little consideration, however, is the extent to which questions of public interest are relevant here. Suppose, for example, that there is an encroachment by a piece of public service infrastructure, such as a road or a sewage pipe. Does the presence of a public interest in the encroaching structure make any difference to the question of whether the victim of the encroachment is entitled to insist on its removal?

In this seminar, three questions will be considered:

• What do we mean by “public interest” in this context?

• In the current state of the law, is there any basis for giving a role to the public interest?

• Should the public interest have any role?

Craig Anderson is currently a lecturer in law at Edinburgh Napier University, specialising in property law. In January 2024, he will be taking up a post as a senior lecturer in law at the University of Stirling. He is twice a graduate of the University of Edinburgh, receiving his LLB in 2001 and his PhD in 2014.

Event Venue & Nearby Stays

Edinburgh Law School, South Bridge, Edinburgh, United Kingdom