Inner House rejects appeal by man who alleged noxious fumes from water treatment plant were entering his garden

A man who sought declarator of nuisance alleging that a waste water treatment plant near his house was creating noxious fumes in his garden has lost his appeal to the Inner House of the Court of Session.

The pursuer and reclaimer, William MacBeanoriginally brought the action against Scottish Water in the Outer House in 2019. He argued that the Lord Ordinary had not provided an adequately reasoned judgment in declining to pronounce further declarator following remedial works to the plant that he claimed had not improved the smell.

The appeal was heard by the Lord Justice Clerk, Lady Dorrian, sitting with Lord Menzies and Lord Turnbull. The pursuer was represented by Smith QC and the defender by McBrearty QC.

No continuing nuisance

The pursuer’s position was that the fumes from the plant, located 17 metres down an embankment from his home in Boat of Garten, had been entering his garden since 2015. In 2019, following the commencement of legal action by the pursuer, the Lord Ordinary pronounced declarator of nuisance, but did not interdict the defender and instead allowed it a further opportunity to remedy matters.

During 2019, the respondent carried out remedial works to the plant, after which it believed the odour problem had been solved. The pursuer disagreed with this assessment, and the proof therefore recommenced in March 2020. The Lord Ordinary declined to pronounce any further declarator, having determined that the plant no longer created a continuing nuisance to the pursuer, and pronounced decree of absolvitor.

In coming to this decision, the Lord Ordinary had regard to assessments conducted by smell assessors instructed by the respondent following the completion of the remedial works, as well as eleven local witnesses led on behalf of the pursuer. He accepted that the plant continued to emit odours that reached the pursuer’s property but held that the evidence he led was largely anecdotal and that the plant no longer constituted an actionable nuisance.

In his reclaiming motion, the pursuer complained that the Lord Ordinary’s decision was plainly wrong in that it could be reasonably explained or justified. He had misunderstood the evidence, not having taken advantage of having seen and heard the witnesses, and the reasoning he provided was not satisfactory. It was submitted that the Lord Ordinary ought to have approached the case on the basis that it was for the respondent to show that the measures taken had abated the problem.

Incisive and coherent

The opinion of the court was delivered by Lady Dorrian. Evaluating the Lord Ordinary’s approach to the case, she noted: “The Lord Ordinary did not have to determine what level of odour –by reference to extent, duration and frequency – might be reasonably tolerable. The permutations would be numerous. What the Lord Ordinary required to do was apply the legal test to the circumstances as found by him, and to decide whether the level of odours established in the evidence was such as to be beyond what might be reasonably tolerable. That is what he did.”

Considering his use of the expert evidence, she continued: “The Lord Ordinary was entitled to consider that [the expert witnesses’] views usurped the function of the court. Apart from providing the Lord Ordinary with technical information, and assisting him to understand what the source of any odours might be, the evidence of the experts did no more than establish that the plant would produce odours and that there was a risk of nuisance therefrom. The extent to which it did produce odours, and whether a nuisance continued, was a matter for the Lord Ordinary to assess as a matter of fact.”

Turning to the style of the Lord Ordinary’s reasoning, Lady Dorrian said: “The Lord Ordinary’s opinion is clear, easy to read, and to understand, and concise. His economical style is to be commended. He was not required to set out in detail the evidence in general. He has set out enough of it that the casual reader may understand the primary issues in the case; and that the parties understand what evidence was accepted and what was rejected.”

She continued: “It is as much a mistake to consider the length of an opinion as a marker of its quality as to judge the quantity of evidence a mark of its cogency. In reality, the opinion is the opposite of superficial; the Lord Ordinary has managed to distil the core issues in the case, the critical pieces of evidence, and the contentions of the parties into an incisive and coherent whole.”

For these reasons, the appeal was refused.

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