SABET OR HUGHES AND ANOTHER AGAINST FIFE COUNCIL AND NORMAN MILNE [2019] ScotCS CSOH_26 (19 March 2019)

SABET OR HUGHES AND ANOTHER AGAINST FIFE COUNCIL AND NORMAN MILNE [2019] ScotCS CSOH_26 (19 March 2019)

Section 56 of the 2009 Act is permissive and does not impose a duty enforceable by private individuals; the pursuers' case under section 56 is irrelevant. Section 59 imposes a duty only where works are described in a schedule prepared under section 18, which was not done here; thus, no breach arises. The pursuers have pled sufficient averments of culpa in nuisance against the second defender to allow proof before answer.

Citation
[2019] ScotCS CSOH_26
Parties
Pursuer: Susan Louise Sabet or Hughes and Another; First Defender: Fife Council; Second Defender: Norman Milne
Jurisdiction
Scotland
Judgment Date
19 March 2019
Procedural Posture
Civil (damages/nuisance/breach of Statutory Duty) / Debate on Preliminary Pleas
Outcome
Action against the first defender (Fife Council) dismissed; proof before answer allowed against the second defender (Norman Milne) on nuisance.
Legal Topics
Nuisance, Flood Risk Management, Breach of Statutory Duty, Liability of Local Authorities, Landowner Responsibilities
Tort/delict Statutory Interpretation Property Law Nuisance Flood Risk Management Breach of Statutory Duty Liability of Local Authorities Landowner Responsibilities

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Parties

Susan Louise Sabet or Hughes and Another

Pursuer

Fife Council

First Defender

Norman Milne

Second Defender

Procedural Posture

Civil (damages/nuisance/breach of Statutory Duty) / Debate on Preliminary Pleas

Legal Issues

  1. 1 Whether sections 56 and 59 of the Flood Risk Management (Scotland) Act 2009 impose duties on local authorities enforceable by private individuals for damages
  2. 2 Whether the pursuers have pled a relevant case in nuisance against the neighbouring landowner

Ratio Decidendi

Section 56 of the 2009 Act is permissive and does not impose a duty enforceable by private individuals; the pursuers' case under section 56 is irrelevant. Section 59 imposes a duty only where works are described in a schedule prepared under section 18, which was not done here; thus, no breach arises. The pursuers have pled sufficient averments of culpa in nuisance against the second defender to allow proof before answer.

Court Disposition

Action against the first defender (Fife Council) dismissed; proof before answer allowed against the second defender (Norman Milne) on nuisance.

Orders

  • Sustain first defender’s second plea-in-law and dismiss action against first defender.
  • Repel pursuers’ first and fourth pleas-in-law.