Fitness of a house for human habitation is not confined to the fabric of the bulding, but in a case based on breach of duty by a landlord in a Scottish secure tenancy it must be pled as a minimum that the house was not so fit at the commencement of the tenancy, the Inner House of the Court of Session ruled yesterday.

Lady Paton, Lord Menzies and Lady Clark of Calton gave the decision in refusing an appeal by Angela and Robert McManus against a decision by Lord Jones to dismiss their action of damages so far as brought against Lanarkshire Housing Association, from whom they rented houses in Tiber Avenue and then Empire Way, Motherwell, both part of what was known as the Watling Street development. They alleged that the development was built on contaminated ground and that they had suffered injury as a result of inhaling noxious vapours rising from the ground which began to permeate the property.

The court also agreed with the Lord Ordinary in dismissing a statutory case against Scott Wilson Scotland Ltd, a company involved in the development, but in allowing a common law case to go to proof. The pursuers did not appeal the decision to dismiss cases brought against the developers of the estate.

In relation to the housing association, the pursuers averred that the ground contained contaminants including volatile and semi-volatile organic compounds which would "pool" around structures in the ground, such as foundations and utility pipes and cables, and release vapour depending on temperature and the level of the water table, which in turn would depend on rainfall. The particular compounds, and the level of permeation, would vary over time. They argued that the Lord Ordinary had adopted too restrictive an approach in considering the association's duty under the Housing (Scotland) Acts 1987 and 2001 to ensure that the house was "reasonably fit for human habitation" at the commencement of the tenancy and to keep it in such condition during the tenancy. He had wrongly concluded on the authorities that the absence of averments of defects in the fabric of the subjects let, at the date of commencement of the lease, meant that the pursuers’ averments were irrelevant.

Lady Clark of Calton, delivering the opinion of the court, stated: "The case pled is not a case to the effect that on a specified date of commencement of the tenancy, vapours harmful to health permeated the house to the extent that the house was not reasonably fit for human habitation on that date (1987 Act) or at the commencement of the tenancy, wind and watertight and in all other respects reasonably fit for human habitation (the 2001 Act). In our opinion that is the minimum requirement of relevant pleadings in this case and we do not consider that the pleadings meet that minimum requirement. Indeed, in his oral submissions we understood counsel to explain that there was nothing wrong with the properties but the problem was that as a result of the contaminated land, as averred in article 18, vapours at some point were likely to occur in the properties and did so in this case causing injury to health."

She continued: "We do not consider the Lord Ordinary’s decision is in error because of any misapplication of the case law. We accept that the use of the word 'fabric' by the Lord Ordinary may suggest too narrow a focus... Fumes or vapours permeating a house causing ill health may, depending on the facts averred, be capable of amounting to a breach of the statutory provision. We have set out what the minimum requirement for relevant pleading is in relation to this aspect of the case. We consider that the Lord Ordinary was correct to focus on the averments the pursuers offered to prove in relation to the date of commencement. It is not enough, in our opinion, to aver that problems might arise in the future during the tenancy or that problems did arise, for example, some fumes or vapours penetrated the house. It is essential to offer to prove that at the date of the commencement of the particular tenancy, the condition of the house was such (and we accept that might be because of the penetration of vapours or fumes) that it was uninhabitable by reference to the relevant statutory test which applied."

In the absence of such averments, the pursuers' appeal had to be refused.

Regarding the case against Scott Wilson, the court said there were no relevant averments to support the alleged breach of duty under s 33 of the Environmental Protection Act 1990 not to "deposit controlled waste, or knowingly cause or knowingly permit controlled waste to be deposited in or on any land", except as permitted. The actual deposits had been done by others, and "The height of the pursuers’ case appears to be an offer to prove that [Scott Wilson] had knowledge of the site conditions, gave certain advice about problems to the [developers] and knew that contamination still existed. In our opinion, such averments are insufficient as a foundation for this statutory case", Lady Clark concluded.

Click here to view the opinion of the court.