Baudoinia compniacensis: when does the ‘Angel’s Share’ become a nuisance?

Gillian Craig updates SLN readers on the recent Angel’s Share nuisance case: Thomas and Gail Chalmers v Diageo Scotland Limited.

As whisky matures in casks, ethanol evaporates from the casks (known as the “Angel’s Share”). Mr and Mrs Chalmers’ house neighboured a Diageo whisky maturing warehouse and was therefore exposed to the ethanol emissions. They claimed that Diageo’s warehouse emits ethanol at a level which germinates a fungus: Baudoinia compniacensis, which covers their house in a black coating and has caused damage to their property, including their home. That, they said, constituted a legal nuisance under Scots common law.

This litigation has implications for all fume-emitting industries, and particularly the whisky industry in Scotland. Whilst the action is ongoing, the judge, Lord Ericht, made some observations about the law of nuisance, the relationship between the law of nuisance and regulatory law, and prescription (time bar).

Private law of Nuisance

Lord Ericht noted that, for a nuisance under Scots law, there must be an act from which culpa (fault) can be established and there must also be an invasion of a person’s interest in land to an extent which exceeds what is reasonably tolerable. What is reasonably tolerable will depend on the circumstances of each individual case.

One issue for the test of what is reasonably tolerable is the character of a neighbourhood, also known as locality. Lord Ericht questioned whether locality 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. A decision on this specific point has been left until after evidence has been heard.

A further consideration for the test of what is reasonably tolerable is whether there has been an alteration to the person’s property after the emissions had started. In this case, Diageo’s warehouse had operated since 1979 and the housing estate in which Mr and Mrs Chalmers’ house was situated was not constructed until 2002. Lord Ericht confirmed that an individual will have a right to complain of nuisance even if the nuisance existed before they went to it. There is no defence of “coming to the nuisance”.

However, it was suggested by Lord Ericht that a defence to a nuisance claim may exist if the house owner has changed the use of, or built upon, the land which is affected by the nuisance activity. This will only be in certain circumstances, such as that the activity was not a nuisance before the change of use of the land or that the activity does not cause a greater nuisance since the change of use of land. A decision on whether such a defence exists for the emissions in this case has been left until after evidence has been heard.

Nuisance and Regulatory Law

The court also considered a long standing conundrum - namely whether public law regulating the use of land (i.e. planning legislation) could override the law of nuisance which protects private interests. The answer, the court found, was that the existence of planning permission for a given use is of limited relevance to the question, as the considerations of the planning authority did not include the common law of nuisance. As such planning authorities cannot, on their own, override private rights in respect of land use. The court has to weigh up all the competing factors, not simply that planning permission has been granted.

Time bar

The court heard arguments as to whether Mr and Mrs Chalmers had lost their right to object to Diageo’s right to emit due to no objection having been taken at an earlier point in time. This matter will be determined at a later stage.

Comment

Whilst the case has been continued to a hearing at which evidence will be led, that hearing will take place against the legal principles established by the court as set out above.

The whisky industry will be watching this case closely to assess its potential impact.