Newbould & Anor v. McEwan & Anor [2006] ScotSC 91 (22 December 2006)

Newbould & Anor v. McEwan & Anor [2006] ScotSC 91 (22 December 2006)

The court found that nuisance was not established. The evidence did not prove that the landfill site or the first defender's actions caused or materially contributed to the flooding on the pursuers' property to the extent required by law. The main sources of water were natural rainfall and topography, and the pursuers' own access road impeded drainage. The pursuers failed to prove culpa on the part of the first defender. Accordingly, the pursuers were not entitled to the orders sought.

Citation
[2006] ScotSC 91
Parties
Pursuer: Constance Popiel Newbould; Pursuer: David William Newbould; First Defender: William Duncan MacEwan; Second Defender: Lothian Recycling Limited
Jurisdiction
Scotland
Judgment Date
22 December 2006
Procedural Posture
Civil / Judgment After Proof Before Answer
Outcome
Pursuers' claims dismissed; first defender assoilzied (absolved) from all craves; question of expenses reserved.
Legal Topics
Nuisance, Land Drainage, Natural and Non Natural Use of Land, Liability for Contractors, Interdict, Damages
Property Law Tort Law Nuisance Land Drainage Natural and Non Natural Use of Land Liability for Contractors Interdict Damages

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Parties

Constance Popiel Newbould

Pursuer

David William Newbould

Pursuer

William Duncan MacEwan

First Defender

Lothian Recycling Limited

Second Defender

Procedural Posture

Civil / Judgment After Proof Before Answer

Legal Issues

  1. 1 Whether the discharge of surface water from the landfill site onto the pursuers' property and the obstruction of drainage of surface water from the pursuers' property through the landfill site constitute a nuisance; whether the first defender is liable for any such nuisance; whether the pursuers are entitled to interdict and damages.

Ratio Decidendi

The court found that nuisance was not established. The evidence did not prove that the landfill site or the first defender's actions caused or materially contributed to the flooding on the pursuers' property to the extent required by law. The main sources of water were natural rainfall and topography, and the pursuers' own access road impeded drainage. The pursuers failed to prove culpa on the part of the first defender. Accordingly, the pursuers were not entitled to the orders sought.

Court Disposition

Pursuers' claims dismissed; first defender assoilzied (absolved) from all craves; question of expenses reserved.

Orders

  • Sustains pleas-in-law 1, 2, 4 and 7 for the first defender.
  • Repels pleas-in-law 1, 2 and 3 for the pursuers.