MacBean v Scottish Water

A Boat of Garten resident has lost a Court of Session case against Scottish Water in relation to odour emitted from a waste water treatment plant (WWTP).

The Court heard that the WWTP sits down an embankment from the resident’s property. When it began operation, the resident, now 70, noticed noxious fumes in his garden. He complained to the WWTP operator Scottish Water.

The matter did not improve, and he decided to raise the Court action seeking that the WWTP be declared a nuisance and its work stopped; and that Scottish Water pay him damages. The resident argued that the company should either build a new plant, or transport the odorous sewage to another plant for treatment.

Scottish Water conceded that it had been causing a nuisance and agreed to make improvements.

The Court heard that since opening, it had carried out remedial work including fitting carbon filters; replacing seals; and installing an odour control unit (OCU). The OCU was accepted as effective. However the resident described the smell as “remaining intolerable” saying that he could not “face another summer of foul odour”. Other neighbours also gave evidence in Court describing an “unpleasant”, “offensive”, “noticeable stink” arising at times.

Following the completion of their improvement work, Scottish Water instructed two independent companies to conduct smell assessments. These included meter readings of noxious smelling hydrogen sulphide and individual ‘sniff tests’. Based on the findings, Scottish Water argued that any smells were now faint, transient and localised.

Lord Woolman wrote in a judgment issued today: “I accept that the WWTP continues to emit odours that come on to the pursuer’s (resident’s) property. But the key question is whether they amount to a continuing actionable nuisance.”

He ruled that they did not, writing: “As to the nature, frequency, and intensity of the smells, I prefer the evidence of the independent assessors to those of the pursuer’s witnesses … I found it to be more accurate because they were independent; the methodology itself was systematic and exacting; they all carried out their task in a meticulous way; they had detailed records of their findings; it took place several times of day over many months; and they were all clear that there had been a marked fall in odours since the OCU began operating. Their evidence provided a detailed and complete mosaic.

“By contrast, the evidence led by the pursuer was largely anecdotal. Some came from persons who visited the village from time to time, rather than residents. They had limited opportunities to detect smells. Some detected no change pre and post OCU. That seemed odd, given the agreement that it materially altered matters. They were not reliable about the big picture. Their evidence provided an unfinished jigsaw. I therefore hold that while the WWTP continues to emit offensive odours, they are irregular, faint, transient and only occasionally go on to the resident’s property.”

Lord Woolman also took into account that Scottish Water had taken careful steps to try to cure the problem; that there were few complaints from persons other than the pursuer; and that the WWTP performed an important public service which would create major disruption if it were forced to move elsewhere or stop operating.

Read the full Opinion.

Summaries of Opinions provide the main findings, but do not form part of the reasons for the decision. The full judgment published on the Scottish Courts and Tribunals website is the only authoritative document.

Summaries of Court Opinions

Crest

In certain cases the judgment reached by the court may be of wider public interest. In these cases a summary of the court’s Opinion is produced and published along with a link to the full Opinion.

Find out more