One of life’s many pleasures is a walk in the countryside, taking in Scotland’s stunning views and a breath of fresh air. More often than not, however, that fresh air is not as fragrant as one might have hoped, being tinged with the aroma of whatever the nearby farmer has chosen to spread on his field that day. In the case at hand, biomass digestate.
I often wonder what neighbouring proprietors might feel about the very particular and pungent odours they are sometimes forced to live in: is it just a fact of life in the country and to be tolerated? Or might the more litigious amongst them actually choose to do something about it?
The remedy for such unpleasantness (apart from various specific statutory remedies under, for example, environmental protection legislation) lies in the common law doctrine of nuisance.
Nuisance (the legal remedy, and not the more abstract concept) has potentially far reaching consequences for those in the energy industry – be it odours emanating from biomass facilities (and any related recycling to land), noise from wind turbines or flooding caused by land operations etc.
But when is such nuisance actionable? Well, to that end there has been a flurry of cases over the past 12 months (which is frankly unusual for this old and underused remedy) which show how the principles of nuisance work in practice, the complexity of those questions and the difficult nature of any litigation.
So, what are the principles?
- To be actionable, the nuisance must emanate from the wrongdoer’s land (it is a property remedy after all), and be plus quam tolerabile (more than is tolerable). What is “tolerable” will depend on the facts and circumstances of each case – including the nature of the locality.
- It matters not that the pursuer “came to” the nuisance, i.e. the offensive operations were underway prior to the pursuer taking title or occupation of their land; however, a change of use of the pursuer’s land may be relevant.
- Whether or not the pursuer requires to prove culpa (negligence) depends on the remedy sought. If interdict is sought, culpa need not be established. Negligence is, however, necessary for a successful damages claim: it is not enough that the nuisance simply happened; there must have been a breach of duty by the neighbouring proprietor. Knowledge and opportunity to remedy the issue will be factors to consider.
That does not mean, however, that an aggrieved neighbour should rush off to court seeking interim interdict. Caution is advised. If interim interdict is granted and subsequently recalled, the interim interdict will be deemed to have been wrongful. Wrongful interdict will give a good claim in damages to the party interdicted, which could be substantial if the interdict had an impact on the operations of the facility complained of. I have lost count of the number of threats of interdict I’ve seen off once the size of the potential damages claim for wrongful interdict is set out to any would-be pursuers.
What does this mean in practice?
Mr and Mrs Chalmers have now been subjected to two diets of legal argument in the Court of Session (Chalmers v Diageo Scotland Ltd  CSOH 36 and  CSOH 63). The Chalmers have the misfortune of living downwind from a whisky aging facility. Ethanol fumes (euphemistically called “the angels’ share”) evaporate from the casks and cause a black fungus to grow on structures in the locality, including the Chalmers’ house and garden furniture. The Chalmers sued, claiming both a loss in value and cleaning costs.
At the first debate, two questions were considered:
- The test of what is reasonably tolerable in the context of the locality, and whether that should be decided on the basis of (a) what the neighbourhood is like with the emissions, or (b) what the neighbourhood is like without the emissions. I had a case recently whereby the odour complained of had little impact on the existing odour from the surrounding industrial estate and nearby sewage plant!
- Whilst there is no defence of “coming to the nuisance”, it may be relevant to any defence that the aggrieved neighbour has changed the use of, or built upon, their land such that a hitherto unobjectionable activity is rendered a nuisance.
A decision on those specific points has been left until after evidence has been heard – if Mr and Mrs Chalmers ever get that far. They have been subjected meantime to another diet of legal argument – this time attacking the valuation of their claim. The question arose as regards whether it is competent to claim both (1) the diminution in value of their property, and (2) various cleaning costs. Diageo argued that they couldn’t have both, as this would constitute “double counting”. The court disagreed. So, it’s off to proof now for Mr and Mrs Chalmers, one would hope…
From the Chalmers in Falkirk, we move to Mr and Mrs Hughes and their neighbours, Mr and Mrs Edwards in Fife. Both families’ houses were damaged by flooding from the Ceres Burn. The flooding, they said, was caused by a weir on land of their neighbour, Mr Milne, becoming blocked with debris. Milne and Fife Council were both sued – the latter in relation to its duties under the Flood Risk Management (Scotland) Act 2009.
Case of fault
The actions ( CSOH 26 (the main judgment) and  CSOH 27) raised two issues in the Court of Session.
(1) As regards the nuisance aspect of the claim, the question of culpa was discussed. The flooding happened after a period of torrential rain. What was Milne supposed to have done? The court allowed this aspect of the claim to proceed, not on the mere basis that the weir was on Milne’s land (that would not have been enough to establish fault), but on the basis that Milne ought reasonably to have been aware that the weir was prone to blocking, had in fact been blocked since 2012, and floods occurred as a result. It wasn’t necessary for the pursuers to plead, for example, that he was under a duty of a system of inspection.
(2) As regards the case against the local authority, I mentioned earlier the various regulatory regimes, particularly in environmental legislation. Typically, these are enforced by for example SEPA. Can a private individual however seek redress for breach of a statutory duty?
The matter is not entirely straightforward. The court considered the test established in X (Minors) v Bedfordshire County Council  2 AC 633, namely, that a breach of statutory duty does not, of itself, give rise to a private right in e.g. damages unless it can be shown (as a matter of construction of the statute) that the statutory protection was for the protection of a limited class of the public and Parliament intended to confer a private right of action on that class. As regards Parliament’s intention, it was clearly arguable that if the statute does not provide any other remedy for its breach, a private right of action may be inferred (as, otherwise, there is no means of enforcing the statutory duty).
However the court did not express a concluded view, as the preconditions for the particular duty relied on had not been satisfied. The case has been allowed to proceed to proof only on the common law liability of Milne.
So, back to my country stroll, I suspect issues of locality and quantification of loss will render any nuisance action difficult for fleeting complaints. It will be a different question for prolonged or permanent problems, particularly where the facility in question really ought to have known better – and could reasonably do something about it. But what we can say with certainty is that nuisance is very much alive and kicking in Scotland.
Gillian Craig is a partner with MacRoberts LLP