Property owners can take legal action when they believe that the use and enjoyment of their land is being impeded by a nuisance. The government has created statutory nuisances which may be caused by noise, light, smoke, vapour or odour. However, it’s not enough just to say that the nuisance caused by another party is occasionally irritating. The court will only uphold a claim if, having given due weight to all the surrounding circumstances, a reasonable person would find the nuisance intolerable.

In the recent case of MacBean v Scottish Water [2020] CSOH 55, the Court of Session reminded us of the hurdles which property owners must overcome to succeed in a nuisance action. In this case, the court had to decide whether the odours emanating from a sewage plant justified closing the plant and forcing Scottish Water to relocate.

What was the case about?

In 2015, Scottish Water opened a wastewater treatment plant on the embankment of Mr MacBean’s property in Boat of Garten, Scotland. Mr MacBean claimed that the smell from the plant was so bad that it would stop him from sitting outside or opening a window in his home. In 2017, Mr MacBean raised an action against Scottish Water to stop the smell.

There was a court hearing in 2019. Witnesses for Mr MacBean testified how terrible the smell could be at his home. The Court decided there was a nuisance.

Scottish Water carried out remedial works to the plant as a result.

Mr MacBean wasn’t satisfied and there was another court hearing this year.

This time, Scottish Water argued that the odour didn’t constitute a nuisance for the following reasons: 1) As a result of the works, it wasn’t as offensive as Mr MacBean suggested (backed up by evidence from two independent testing teams); 2) relatively few complaints had been made to Scottish Water, SEPA or the local council regarding the odour; 3) the plant was operating in accordance with its odour management plan; and 4) the cost of replacing the plant elsewhere, coupled with the disruption to operation, simply couldn’t tip the balance of convenience in Mr MacBean’s favour.

The decision

The court dismissed the case. While accepting that the plant emitted odour, the court favoured Scottish Water’s evidence in deciding it wasn’t intolerable to a reasonable person. The court also considered their efforts to try to rectify the problem.

What should property owners, and site operators, take from this case?

Property owners looking to raise a nuisance action ought to have strong and objective evidence which demonstrates why the nuisance could be considered intolerable to a reasonable person.

For site operators, the court appeared to look more favourably on Scottish Water because they acknowledged the complaint and took steps to rectify it.