Scottish Court of Session Decisions

Messrs Guthrie, Craig, Peter, & Company were the tenants and occupiers of the Brechin Paper Mill Manufacturing Works, within the burgh of Brechin, and as such were liable for sewerage or drainage assessment to the Magistrates and Town Council of the burgh, who were also the local authority under the Public Health (Scotland) Act 1867, and the Public Health (Scotland) Amendment Act 1871. Section 77 of the Public Health (Scotland) Act 1867, provides—“Any owner or occupier of premises within the district of a local authority, liable for general or special sewerage or drainage assessment, shall be entitled to cause his drains to empty into the sewers of such local authority on condition of his giving twenty days' previous notice of his intention so to do to the local authority, and of complying with their regulations in respect of the mode in which the communications between such drains and sewers are to be made, and subject to the control of any person who may be appointed by the local authority to superintend the making of such communications.”

On 12th March 1883 Messrs Guthrie, Craig, Peter, & Company gave the Magistrates notice, in terms of the 77th section of the Public Health (Scotland) Act 1867, that they desired to cause the drains from their works to empty into the sewers within the burgh, and intimated their readiness to comply with the regulations as to the mode in which the communication should be made and otherwise.

The Magistrates replied agreeing to give facilities for enabling them to carry the liquids proceeding from their works into the public sewers, provided they were satisfied that this would not prejudicially affect the sewers or the sale of the sewage matter conveyed along the sewers.

Messrs Guthrie, Craig, Peter, & Company obtained a report from a chemical expert to this effect, but the Magistrates refused to allow any communication between the drains and the sewers to be made.

Messrs Guthrie, Craig, Peter, & Company accordingly presented a petition in the Sheriff Court of Forfarshire at Forfar, praying that the Magistrates should be ordained “to allow the pursuers to cause the drains of and containing the liquid flow from the Brechin Paper Mill Manufacturing Works, situate on the river South Esk, within the burgh of Brechin, tenanted and occupied by the pursuers, to empty into the sewers of the defenders in or near River Street within the said burgh of Brechin; and to find that the pursuers are entitled to make all proper communications between their said drains and the said sewers for the purpose aforesaid, on condition of the pursuers complying with the defenders' regulations in respect of the mode in which the communications between such drains and sewers are to be made, and subject to the control of any person who may be appointed by the defenders to superintend the making of such communication.”

Besides founding on the 77th section of the Public Health Act 1867 (above quoted), they set forth the 7th section of the Rivers Pollution Prevention Act 1876. That section provides—“Any sanitary or other authority having sewers under their control shall give facilities for enabling manufacturers within their district to carry the liquids proceeding from their factories or manufacturing processes into such sewers, provided that this section shall not extend to compel any sanitary or other local authority to admit into their sewers any liquid which would prejudicially affect such sewers, or the disposal by sale, application to land, or otherwise, of the sewage matter conveyed along such sewers, or which would from its temperature or otherwise, be injurious in a sanitary point of view; provided also, that no sanitary authority shall be required to give such facilities as aforesaid where the sewers of such authority are only sufficient for the requirements of their district, or where such facilities would interfere with any order of any court of competent jurisdiction respecting the sewage of such authority.”

The defenders stated in answer, that as part of a new drainage system which had recently come into operation, the sewage running through their drains which entered the river South Esk was now under a new scheme prevented from falling into the South Esk till it had been purified by passing through a sewage farm, and they averred that the discharge from the pursuers' drains would

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prejudicially affect the sewers, and prejudice the quality of the sewage for the purpose or such application to land. It would also, they said,unduly increase the volume of the total discharge.

TheSheriff-Substitute( Robertson), after proof, on 18th December 1884 pronounced this interlocutor—“Finds in fact that the liquids issuing from the pursuers' paper-works at Brechin, which are chemically objectionable and likely to injure sewage or vegetation, are three in number namely, ‘black boil,’ ‘spent bleach,’ and ‘washings,’: Finds that when these three liquids are mixed together and exposed to the action of the air in settling ponds the resultant fluid is harmless, and such as the defenders may safely allow to be introduced into the public sewer of Brechin: Finds that since the raising of the present action the pursuers have produced and brought under the notice of the defenders a plan, which forms No. 36 of process, showing how they are now prepared to form a series of settling ponds in which these three liquids will be thoroughly mixed and settled before the defenders will be called upon to receive the resultant fluid into their sewer: Finds in law, and under a sound construction of section 7 of the Rivers Pollution Act, and section 77 of the Public Health Act, that the defenders are bound to receive the resultant fluid issuing from said settling ponds into the public sewer of Brechin: Remits to Thomas Stevenson, civil engineer, Edinburgh, whom failing to Hugh Littlejohn, M.D., Edinburgh, to see the plan, No. 36 of process, carried out by the pursuers; and thereafter, and on the completion of said plan to the satisfaction of the reporter, Ordains the defenders to allow the pursuers to discharge the resultant fluid issuing from the said settling ponds into the public sewer of Brechin on condition of the pursuers complying with the defenders' regulations as to the mode in which the communication between the pursuers' premises and the public sewer is to be made: Finds the defenders entitled to expenses up to and including the first diet of proof in the case: Finds the defenders liable in expenses from and after that date, &c.

“ Note.—The pursuers are ratepayers in the town of Brechin, and are as much entitled to the use of the public sewer as any other members of that community, always provided they are not seeking to introduce ‘any liquid which would prejudicially affect such sewer, or sewage matter conveyed along such sewer.’ In resisting the pursuers' demand that the liquids from their paper-works be introduced into the public sewer, the defenders must take their stand upon the 7th section of the Rivers Pollution Act, and must show that their sewer and sewage will be prejudicially affected by such liquids. The question becomes one for chemical experts. With one exception, the eminent chemists who have been examined in the case certify that if certain precautionary measures are taken the fluids from the pursuers' works become innocuous, and may safely be introduced into the public sewer. Their unanimity on this point renders any detailed analysis of the evidence unnecessary. Dr. Wallace of Glasgow, who is one of the defenders' own witnesses, explains how the caustic soda contained in the ‘black boil,’ the lime contained in the ‘spent bleach,’ and the acid contained in the ‘washings,’ neutralise each other when they are mixed together and exposed to atmospheric influences. This can readily be done, and a harmless liquid obtained by a series of mixing and settling ponds, and the plan proposed to be carried out by the pursuers Dr Wallace considers to be quite satisfactory. The fact that the objectionable liquid must first pass into these settling ponds and there be neutralised by their chemical action on each other, and by the action of the air on them is a sufficient safeguard to the defenders. The safety of the sewer is not made to depend on the negligence or carefulness of the pursuers' work people. There is no danger of that sort. It is put out of the power of any careless workman to flood the sewer with a poisonous liquid. The only access to the sewer will be after these settling ponds have done their work. And when Dr Wallace was under examination I was very careful to bring this out.

I think Dr Wallace's evidence is conclusive, backed up as he is by all the pursuers' own chemical witnesses. These include the public analyst for the city of Edinburgh, and the professor of chemistry in Dundee University College.”

The Magistrates appealed to the Court of Session.

On 20th May 1885 the Court pronounced this interlocutor:—“The Lords having heard counsel, supersede consideration of the judgment appealed against, and in the meantime (1) allow the pursuers to construct the works delineated and described on the plan No. 36 of process, at the sight of Professor Alexander Crum Brown, and Robert Carstairs Reid, civil engineer; and (2) on the completion of the said works to the satisfaction of the reporters, ordain the appellants, at the sight of the reporters, to allow the pursuers, for the purpose of experiment, to discharge the resultant fluid issuing from the said works into the public sewers of Brechin, for such time and under such conditions as the reporters may consider necessary to enable them to report on the effect of such discharge, and appoint the reporters to report quam primum as to the character of the said resultant fluid, and its effect upon the respondents' sewer-pipes and sewage farm: Quoad ultra continue the cause.”

On 28th January 1888 the reporters submitted their report, in which they stated, inter alia:—“At our various meetings on the ground we explained to the pursuers or their representatives then present that the incrustation in the pipe was due to the alkalinity of the effluent from their tanks, and that this could only be prevented by adding more acid so as to render it neutral or nearly so. The pursuers have always use.d a certain proportion of acid in the process of manufacturing the paper, but since our inspection in October 1886 they have used more acid in the paper-mill, with the result that the effluent has become practically neutral. Since this change in the way of working, by which the effluent is rendered practically neutral, we examined the sewer on the 15th April and 6th December 1887, and found that not only was there no increase of the incrustation but the former incrustation was disappearing, and had become so soft as to be removable by ordinary flushing. There is no reason to fear that the effluent from the pursuers' work will ever be sensibly acid, as that would imply a needless expenditure on their part, and

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there is thus no risk of the pipes being injured by excess of acid. The sewer-pipe is of sufficient capacity to carry the whole discharge from the pursuers' works in addition to the ordinary sewage coming from the town, and indeed the additional flow will induce greater velocity, and thus assist in scouring the pipe and keeping it clear of ordinary deposit. We are therefore of opinion that the effluent from the pursuers' tanks may be admitted to the public sewers of Brechin without injury to the sewer-pipes by incrustation or otherwise so long as it remains in its present condition of practical neutrality. If the incrustation appears to grow again in the pipes it must be owing to this condition of practical neutrality not having been sufficiently maintained, and in such circumstances the defenders should have the right to call upon the pursuers to restore this condition of practical neutrality in the effluent.” With regard to the effect of the additional fluid on the sewage farm of the defenders, the reporters stated:—“The flow of sewage in dry weather is equal to 20,000 gallons per day for each acre that has been properly prepared for irrigation, and fully 10,000 gallons per day for each acre of the whole farm, and when the paper-mill discharges are added the above figures will be nearly doubled. In the best types of sewage irrigation farms laid off similarily to that portion of this farm which has been properly prepared for sewage, not more than 8000 gallons per day are allowed for each acre on an average throughout the year, so that even if the whole farm of nearly 15 acres were properly laid out for irrigation it would barely be sufficient to purify the dry weather sewage of Brechin, not to speak of the much greater volume during wet weather. With only 7 1 2acres properly prepared for irrigation, as at present, it is not to be expected therefore that complete purification can be effected; and indeed we found that the effluent from the farm was not completely purified even before the paper-mill discharges were let into the sewer. The effluent coming from the pursuers' tanks is much freer from polluting matter than the town sewage, and its addition therefore dilutes the sewage, but owing to the larger volume to be dealt with, the purification effected by the sewage farm cannot be so complete as when the polluting matter is concentrated in the smaller volume of dry weather sewage.… We found it necessary to continue the experiment over two seasons in order to judge of the effect of the addition of the effluent from the pursuers' tanks on the crops generally grown on the farm, and after careful examination we have come to the conclusion that it exercises no prejudicial effect upon them, unless the ground is overcharged, in which case the excess of water of itself would do mischief. We have therefore to report our opinion that the resultant fluid or effluent issuing from the pursuers' tanks into the public sewers of Brechin is not of such a character so long at it is maintained in its present condition of practical neutrality, as to produce any injurious effect on the sewer-pipes, or on the crops or soil of the sewage farm, but that the larger volume of liquid to be dealt with necessitates a different mode of working the sewage farm to effect proper purification of the combined discharges from the sewer before they reach the river South Esk.”

On this report the appellants argued-This was a peculiar case, because the sewage from the mill would nearly double the existing volume passing through the sewers, while the pursuers only paid £8 assessment out of a total of £400. If the defenders were compelled to take the pursuer's sewage they would also be obliged to adopt a new system of disposing of the sewage, as not only would their present sewage farm be too small for the extra amount of sewage, but this extra amount would be deleterious to the farm.

Argued for the respondents—The Acts did not take into consideration the ultimate disposal of the sewage, but only the capacity of the sewers to carry it off, and the quality of the sewage from a sanitary and commercial point of view. The capability of the sewers to carry off the sewage had been proved by experiment, and the quality tested by analysts, and proved to be harmless.

At advising—