Boat of Garten man loses ‘bad smell’ nuisance appeal against Scottish Water

William MacBean, a resident of Boat of Garten, originally raised the action against Scottish Water in 2017, two years after the plant began operating. He sought interdict and damages from the defender, or alternatively declarator of continuing nuisance to allow for the defender to make amends.

The case was heard in the Outer House of the Court of Session by Lord Woolman.

Horrible odours

The pursuer, aged 70, had lived in or around Boat of Garten for his whole life. He bought the property in 1988 and used it as both his home and the centre of his business operations. In 2010, the defender applied for planning permission for a new WWTP, which would replace another plant that was situated 50 metres further away from the pursuer’s home than the new one would be.

The proposed new plant was to be located 17 metres away from the pursuer’s home. The planning application also contained a statement that there would be “no significant odour-generating locations at the site”. The defender later conceded they should never have made that representation.

From June 2015 onwards, after the plant had started operating, the pursuer and other local residents began to make frequent complaints to the defender. All three gained the impression that their complaints were being brushed aside. Following an expert report that was sent to Highland Council, the pursuer raised an action in the Outer House.

At the original proof, the pursuer described “horrible odours” that lasted most of the day and night and prevented him from doing work in his garden. He described the hot summer of 2018 as “hellish” due to the smells. On the basis of this evidence, and that of others, the defender conceded in January 2019 that it had been causing a nuisance.

In a previous hearing of the case, Lord Woolman granted declarator of nuisance at the joint request of both parties but did not grant interdict in order to allow the defender to have a further opportunity to remedy matters. The defender carried out remedial works to the plant, which it believed had cured the smell problem, based on the opinions of two independent companies contracted to assess the smell at the plant, using Jerome meters to detect the presence of any hydrogen sulphide.

Following further complaints from the pursuer investigations were undertaken at his home by the two companies, M² and Silsoe Odours Ltd. No significant odours were detected at sites identified by the pursuer, although they often occurred hours or days after the complaint was first reported. The overall findings of the companies were consistent with a significant decline in odours.

The pursuer disagreed with the assessment of the independent analysts. During the proof, evidence was heard from several Boat of Garten residents and visitors who also gave evidence at previous hearings. Their evidence suggested that there was a difference following the remedial works, but that there was still an unpleasant odour on the pursuer’s property on a frequent basis.

Systematic and exacting methodology

In his opinion, Lord Woolman accepted that there were still odours on the pursuer’s property. On whether they amounted to a continuing nuisance, he said: “As to the nature, frequency, and intensity of the smells, I prefer the evidence of the M² and SOL assessors to those of the pursuer’s witnesses. I do so because of the weight and cogency of their evidence. I found it to be more accurate because (a)they were independent, (b)the methodology itself was systematic and exacting, (c)they all carried out their task in a meticulous way, (d)they had detailed records of their findings, (e)it took place several times of day over many months, and (f)they were all clear that there had been a marked fall in odours since the OCU began operating. Their evidence provided a detailed and complete mosaic.”

He also observed: “My impression was that the assessors were actively pleased to find smells. It relieved some of the monotony of their task. In other words, there was no attempt to ameliorate the figures. By contrast, the evidence led by the pursuer was largely anecdotal. Some came from persons who visited the village from time to time, rather than residents. They had limited opportunities to detect smells. Some detected no change pre and post OCU. That seemed odd, given the agreement that it materially altered matters. They were not reliable about the big picture. Their evidence provided an unfinished jigsaw.”

On the surrounding circumstances of the alleged offensive conduct, he said: “First, Scottish Water did not intend to cause a nuisance and has taken careful steps to try to cure the problem. Secondly, there are few complaints from persons other than Mr MacBean. Thirdly, the WWTP performs an important public service which would create major disruption if it had to move elsewhere or cease operations.”

He continued: “There are three further points. It appears that many complaints relate to desludging. I am not satisfied that they cause a nuisance on every occasion, but even if they do, I hold that they are reasonably tolerable, having regard to the degree to which they invade Mr MacBean’s property and disturb his amenity.”

In conclusion, he said: “I hold that the pursuer has not established a continuing nuisance. I shall fix a By Order hearing to hear submissions on the order I should now pronounce, given the decree of declarator I have already pronounced.”