APPEAL BY WILLIAM MacBEAN AGAINST SCOTTISH WATER [2021] ScotCS CSIH_36 (07 July 2021)

APPEAL BY WILLIAM MacBEAN AGAINST SCOTTISH WATER [2021] ScotCS CSIH_36 (07 July 2021)

The court held that the Lord Ordinary was entitled to prefer the systematic and independent evidence of the smell assessors over the anecdotal evidence of the reclaimer and his witnesses. The evidence established that, following remedial works and installation of the Odour Control Unit, any odours were irregular, faint, transient, and only occasionally extended to the reclaimer's property, and did not amount to actionable nuisance. The Lord Ordinary's findings were not plainly wrong, and his reasoning was adequate. Absolvitor was the correct disposal, and the award of expenses was within the Lord Ordinary's discretion.

Citation
[2021] ScotCS CSIH_36
Parties
Pursuer and Reclaimer: William MacBean; Defender and Respondent: Scottish Water
Jurisdiction
Scotland
Judgment Date
07 July 2021
Procedural Posture
Civil Appeal (nuisance) / Appeal From Lord Ordinary's Decision
Outcome
Appeal refused; decree of absolvitor affirmed
Legal Topics
Nuisance, Odour Emissions, Declarator, Interdict, Damages, Expenses, Standard of Appellate Review
Tort/delict Environmental Law Civil Procedure Nuisance Odour Emissions Declarator Interdict Damages +2 more

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Parties

William MacBean

Pursuer and Reclaimer

Scottish Water

Defender and Respondent

Procedural Posture

Civil Appeal (nuisance) / Appeal From Lord Ordinary's Decision

Legal Issues

  1. 1 Whether the remedial works at the waste water treatment plant abated the actionable nuisance previously declared
  2. 2 Whether the Lord Ordinary erred in findings of fact or law regarding continuing nuisance
  3. 3 Whether the proper disposal was absolvitor or dismissal/declarator

Ratio Decidendi

The court held that the Lord Ordinary was entitled to prefer the systematic and independent evidence of the smell assessors over the anecdotal evidence of the reclaimer and his witnesses. The evidence established that, following remedial works and installation of the Odour Control Unit, any odours were irregular, faint, transient, and only occasionally extended to the reclaimer's property, and did not amount to actionable nuisance. The Lord Ordinary's findings were not plainly wrong, and his reasoning was adequate. Absolvitor was the correct disposal, and the award of expenses was within the Lord Ordinary's discretion.

Court Disposition

Appeal refused; decree of absolvitor affirmed

Orders

  • Reclaiming motion refused
  • Decree of absolvitor stands