Send me to jail, insists 96-year-old after he loses battle over extension

A 96-year-old man’s attempt to force his neighbour to demolish an extension has been rejected by a court, in a case he estimates to have cost him £42,000.

David Smith, a retired electrical engineer, claimed that James Crombie had encroached on to his land after removing a fence that had divided their back gardens for 20 years. However, a judge ruled that the fence had not marked the true boundary between the properties and that Mr Crombie’s kitchen extension was on his own land and should be allowed to remain.

A defiant Mr Smith, of Newtongrange, Midlothian, criticised the judgment, saying: “It is wrong, absolutely wrong. [The case] has taken a lot out of me, and cost £42,000. I can’t afford it. They will have to take the money off me but I’m not giving it. They can put me in the jail if they like. I know I am right.”

The dispute began in August 2007, when Mr Crombie, 62, pulled down a ranch-type fence and work began on the extension. Mr Smith had been on a trip to Blackpool that weekend, and his witnesses claimed at the Court of Session in Edinburgh that the fence was being taken down as he was being driven away in the car. A friend had approached Mr Crombie, and alleged he was told to “f*** off” because it had nothing to do with him.

The judge, Lord Matthews, was told that Mr Smith, who had worked for many years for the National Coal Board, had lived in the house since 1970, and bought it in 1985. Then, the rear gardens of his and the neighbouring house were separated by a hedge. However, in 1986 it was agreed with the neighbour that the hedge would be taken down, and a fence erected in its place.

Lord Matthews said the fence was not straight and it was now disputed between Mr Smith and Mr Crombie, who moved in next door in 1992, that the line of the fence had reflected the true boundary between the properties. Mr Crombie had put up a new fence, following a different line, at the time of the building works.

“If the line of the original fence followed the boundary, then there has indeed been a degree of encroachment on the part of (Mr Crombie),” said Lord Matthews.

Mr Crombie told the court that he had needed the extension to accommodate his two children and his father, who had Alzheimer’s. He said no-one had objected when the local authority sent out letters about planning permission.

Mr Smith did not attend court and his evidence was taken on commission. Lord Matthews said: “It was clear that he was a very difficult witness who may not have understood precisely why he was being asked questions. The commissioner did not suggest he was intentionally trying to be difficult and was sure that he himself believed (Mr Crombie) had built on his land.”

The judge added: “Had I been minded to find in favour of (Mr Smith), I would not have ordered demolition of the extension. It seems to me that that would be disproportionate in view of the very limited encroachment which would have been caused by the extension.”