APPEAL BY WILLIAM MacBEAN AGAINST SCOTTISH WATER

Factual and Procedural Background

The Plaintiff owns a residence and business premises near a waste water treatment plant ("WWTP") operated by the Defendant. Since the plant began operating in 2015, the Plaintiff complained about noxious odours emanating from the plant, sometimes reaching his property and house. The Plaintiff initiated legal proceedings seeking a declarator of nuisance, interdict, and damages.

The initial hearings commenced in November 2018. In January 2019, the court declared that the plant caused a nuisance to the Plaintiff but did not grant an interdict, allowing the Defendant time to remedy the issue. The Defendant undertook remedial works during 2019, including installing an Odour Control Unit (OCU) and implementing various odour mitigation measures. The Plaintiff contended that the nuisance persisted, leading to further proof hearings in March 2020 to determine if the problem had been resolved.

The Lord Ordinary ultimately found that following the remedial works, the plant did not cause a continuing nuisance. The Plaintiff appealed this decision on grounds including alleged errors in fact-finding, inadequacy of reasoning, the form of disposal, and the decision on expenses.

Legal Issues Presented

1. Whether the waste water treatment plant continued to cause an actionable nuisance to the Plaintiff following the remedial works.
2. Whether the Lord Ordinary erred in his factual findings by preferring the evidence of odour assessors over that of the Plaintiff and his witnesses.
3. Whether the form of disposal should have been a dismissal rather than absolvitor.
4. The appropriate allocation of expenses between the parties in light of the remedial efforts and litigation history.

Arguments of the Parties

Appellant's Arguments

• The Lord Ordinary failed to properly assess the continuing nuisance, misunderstanding or miscategorising the evidence.
• The judgment lacked adequate reasoning and did not properly take advantage of having seen and heard witnesses.
• The Lord Ordinary erred in preferring the evidence of the Defendant’s odour assessors over the Plaintiff’s witnesses.
• The form of disposal was incorrect; the decree should have been one of dismissal rather than absolvitor to preserve the Plaintiff’s right to future action without res judicata barriers.
• The expenses decision was flawed, as the Plaintiff should have been awarded expenses for the period up to judgment given the Defendant’s admission of nuisance and subsequent remedial actions.

Respondent's Arguments

• The remedial works, including the installation of the OCU, substantially reduced odours and abated the nuisance.
• The evidence of the odour assessors was methodical, independent, and reliable, warranting preference over anecdotal evidence from the Plaintiff and his witnesses.
• The form of disposal as absolvitor was appropriate to avoid repetitive litigation on the same matter.
• The expenses award was balanced and reasonable, reflecting the merits of the case and the Defendant’s efforts to address the nuisance.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by reaffirming the established test for nuisance as set out in Watt v Jamieson, focusing on whether the odours were more than reasonably tolerable, considering all surrounding circumstances.

It accepted that odours from the WWTP continued to reach the Plaintiff’s property but emphasized the importance of assessing their nature, intensity, frequency, and duration after the remedial works, particularly after the OCU became operational.

The Lord Ordinary’s preference for the evidence of the odour assessors over the Plaintiff’s witnesses was upheld. The assessors’ evidence was deemed more reliable due to its systematic, independent, and methodical nature, with detailed records over extended periods. Conversely, the Plaintiff’s evidence was characterized as anecdotal and impressionistic, with some witnesses being visitors or non-residents with limited opportunity to detect odours.

The court found no error in the Lord Ordinary’s rejection of the experts’ "fitness for purpose" opinions as usurping the court’s role, noting that such conclusions involved legal determinations beyond technical expertise.

Regarding the form of disposal, the court agreed that a decree of absolvitor was appropriate to prevent repetitive litigation, as the evidence showed the nuisance had ceased or was reasonably tolerable.

On expenses, the court acknowledged a gap in the Lord Ordinary’s award and extended the Plaintiff’s expenses entitlement up to the date the OCU became operational, but otherwise found the approach to expenses balanced and reasonable in light of the litigation history and remedial efforts.

The court also addressed the Plaintiff’s criticisms of the Lord Ordinary’s reasoning and found the judgment clear, concise, and adequate for understanding the factual findings and legal conclusions. The appellate standard requiring a finding to be "plainly wrong" was not met, as the Lord Ordinary’s decision was one a reasonable judge could reach.

Holding and Implications

The court DISMISSED the appeal, affirming the Lord Ordinary’s decision that the waste water treatment plant did not cause a continuing nuisance following the remedial works, including the installation of the Odour Control Unit.

The decree of absolvitor stands, and the Plaintiff’s expenses are extended up to 19 September 2019, the date the OCU began operating. The remainder of the expenses order is upheld.

The decision directly resolves the dispute between the parties without setting new legal precedent. It confirms the application of established nuisance principles in the context of odour emissions from utility infrastructure and underscores the deference appellate courts give to first-instance factual findings, especially where systematic evidence is preferred over anecdotal testimony.