Thomas and Gail Chalmers -v- Diageo Scotland
Limited, Court of Session, 3 March 2017
As whisky matures in casks, ethanol evaporates from the casks
(known as the "Angel's Share"). Mr and Mrs
Chalmers' house neighboured a Diageo whisky maturing warehouse
and was therefore exposed to the ethanol emissions.
They claimed that Diageo's warehouse emits ethanol at a
level which germinates a fungus, Baudoinia compniacensis,
which covers their house in a black coating and has caused damage
to their property, including their home. That, they said,
constituted a legal nuisance under Scots common law.
This litigation has implications for all fume-emitting
industries, and particularly the whisky industry in Scotland.
Whilst the action is ongoing, the judge, Lord Ericht, made some
observations about the law of nuisance, the relationship between
the law of nuisance and regulatory law, and prescription (time
Private law of Nuisance
Lord Ericht noted that, for a nuisance under Scots law, there
must be an act from which culpa (fault) can be established
and there must also be an invasion of a person's interest in
land to an extent which exceeds what is reasonably
tolerable. What is reasonably tolerable will depend on the
circumstances of each individual case.
One issue for the test of what is reasonably tolerable is the
character of a neighbourhood, also known as
locality. Lord Ericht questioned whether locality
should be decided on the basis of (a) what the neighbourhood is
like with the emissions or (b) what the neighbourhood is like
without the emissions. A decision on this specific point has been
left until after evidence has been heard.
A further consideration for the test of what is reasonably
tolerable is whether there has been an alteration to the
person's property after the emissions had started. In this
case, Diageo's warehouse had operated since 1979 and the
housing estate in which Mr and Mrs Chalmers' house was situated
was not constructed until 2002. Lord Ericht confirmed that an
individual will have a right to complain of nuisance even
if the nuisance existed before they went to it. There is
no defence of "coming to the nuisance".
However, it was suggested by Lord Ericht that a defence to a
nuisance claim may exist if the house owner has changed the use of,
or built upon, the land which is affected by the nuisance activity.
This will only be in certain circumstances, such as that the
activity was not a nuisance before the change of use of the land or
that the activity does not cause a greater nuisance since the
change of use of land. A decision on whether such a defence exists
for the emissions in this case has been left until after evidence
has been heard.
Nuisance and Regulatory Law
The court also considered a long standing conundrum- namely
whether public law regulating the use of land (i.e. planning
legislation) could override the law of nuisance which protects
private interests. The answer, the court found, was that the
existence of planning permission for a given use is of limited
relevance to the question, as the considerations of the planning
authority did not include the common law of nuisance. As such
planning authorities cannot, on their own, override private rights
in respect of land use. The court has to weigh up all the competing
factors, not simply that planning permission has been granted.
The court heard arguments as to whether Mr and Mrs Chalmers had
lost their right to object to Diageo's right to emit due to no
objection having been taken at an earlier point in time. This
matter will be determined at a later stage.
CommentWhilst the case has been continued to a hearing at which
evidence will be led, that hearing will take place against the
legal principles established by the court as set out above.
The whisky industry will be watching this case closely to assess
its potential impact.
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matter. Recipients should not act on the basis of the information
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