Scottish Court of Session Decisions

LORD STOTT'S OPINION.—The pursuer lives at 14 Ramsay Gardens, Edinburgh, where she is the owner and occupier of a top-floor flat overlooking and immediately adjacent to the castle esplanade. She avers that her peaceful enjoyment of her home is interrupted each year by excessive noise arising from the performance of the Edinburgh Military Tattoo and work ancillary thereto. In the present action directed against (1) the Lord Advocate as representing the Secretary of State for Scotland, and (2) the Tattoo policy committee as the persons responsible for staging the Tattoo, she seeks declarator that the second defenders have made preparations for and staged performances of the Tattoo on the esplanade in such a manner as by reason of noise to cause a nuisance to the pursuer as proprietor and occupier of 14 Ramsay Garden and interdict against them from making preparations for and staging performances in such manner. She concludes for declarator against the first defender that the Secretary of State has permitted the second defenders to create and continue the alleged nuisance.

The pursuer has been in occupation of her flat only since July 1977, but counsel on both sides of the bar were agreed that the fact that an alleged nuisance was already in existence at the date when she came to it could not preclude her from seeking interdict against it since the houses in Ramsay Gardens were built and occupied before the nuisance began. "It is clear that whether the man went to the nuisance or the nuisance came to the man, the rights are the same": Fleming v. Hislop (1886) 13 R. (H.L.) 43, perLord Halsbury at p. 49; Rankine, Land-Ownership (4th ed.), p. 390.

The Edinburgh Tattoo has been held annually on the castle esplanade for more than 30 years at times roughly coinciding with the holding of the Edinburgh International Festival. The defenders aver that it is attended by thousands of spectators and seen on television by millions of viewers. It is an important medium of recruitment to the armed services and an important element in military training. It promotes international understanding through the involvement of visiting forces. In all the circumstances it would be to the detriment of the public interest if interdict were granted. These averments were supported by a formidable body of evidence including in particular that of John Drummond, the director of the Edinburgh Festival, an impressive witness. By and large, and making allowance for some degree of exaggeration in the evidence of some witnesses as, for instance, that the Tattoo had made the name of Edinburgh known in distant parts of the world, I was left in no doubt that the Tattoo is a spectacle appreciated by the public and a valuable publicity and commercial asset to the city. The pursuer admits on record that the Tattoo is a renowned international event and the evidence left me in no doubt that in the interest of Edinburgh and of Scotland as a whole it would be desirable that it should be allowed to continue.

Counsel for the pursuer submitted that a similar result might be achieved by staging the Tattoo elsewhere than on the esplanade, and that a change of venue might indeed be advantageous. On this matter, however, I had the advantage of hearing among other evidence that of the Tattoo producer, Lieutenant-Colonel Dow. Colonel Dow was an excellent witness who gave his evidence with conspicuous fairness. He satisfied me that the intimacy of the esplanade against a backdrop of the historic castle was an essential element in the Tattoo and that if it were to continue at all there could be no suitable alternative site.

On the basis of that evidence it was submitted by counsel for the defenders that the public interest in the continuance of the Tattoo, including in that the interest not only of the citizens and ratepayers of Edinburgh but of the visitors who came to it from all over the world, far outweighed any interest which neighbouring occupiers might have in its cessation. But while that consideration would no doubt be all-important at the stage of interim interdict when balance of convenience is the main consideration, the situation is different if once it is established that what the defenders have done and propose to do is an infringement of an occupier's rights. Reference was made to Miller v. Jackson [1977 ] Q.B. 966, where a householder sought an injunction against a village cricket club from so ordering its affairs as to allow cricket balls to land in the plaintiffs garden. The court, by a majority (Denning M.R. and Cumming-Bruce L.J.) refused an injunction on the ground that the greater interest of the inhabitants of the village in enjoying their summer recreation should prevail over the hardship to individual householders of being deprived of their enjoyment of their garden while cricket was being played.

I am not satisfied that this line of approach accords with the law of Scotland. The Scottish authority cited in support of it was a dictum of Lord Justice-Clerk Moncreiff in Inglis v. Shotts Iron Co. (1881) 8 R 1006, at p. 1021, where after a reference to the weight to be given to the habit and practice of the neighbourhood, his Lordship observed:

"Nor, in extreme cases, do I doubt that the comparative interests at stake may be taken into view".

It has been suggested that the observation may have been made in deference to views expressed in Lord Young's dissenting opinion. But be that as it may I am unable to regard it as a considered exposition of the law. It is significant that when the case went to the House of Lords the dictum was not followed up in any way and Lord Blackburn indeed observed ((1882) 9 R. (H.L.) 78, at p. 88) that a pursuer suffering substantial injury was entitled to interdict even if the effect was to prevent vauable minerals belonging to the defenders from being used. Lord Watson (at p. 90) said that the operations of which the pursuer complained were causing appreciable damage to his property and he was therefore entitled to decree of interdict. The proposition that the pursuer was not entitled to interdict where the loss to the defender would be out of all proportion to any advantage to the pursuer was decisively rejected by Lord Adam in Bank of Scotland v. Stewart (1891) 18 R. 957, Lord President Inglis agreeing with him that "for the Court to abstain from enforcing a right because that enforcement would cause great inconvenience or pecuniary loss to somebody else is a doctrine which is quite unknown to the law of Scotland". That statement of law, though no doubt to some extent obiter as counsel for the second defenders pointed out in his helpful submission, has been adopted and followed in subsequent cases including the recent case of Ferguson v. Tennant 1978 S.C. (H.L.) 19 (perLord Justice-Clerk Wheatley at p. 47 and Lord Robertson at pp. 52–53).

It is true, as counsel for the second defenders also submitted, that interdict is an equitable remedy but the court's discretion to refuse interdict on that score is strictly limited (Burn-Murdoch, Interdict, pp. 102–103). In Grahame v. Magistrates of Kirkcaldy (1882) 9 R (HL) 91, which was cited by counsel for the defenders, the question was what was to be done about work which had been completed before interdict was pronounced. It was not concerned with any right of the court to withhold interdict. MacLure v. MacLure 1911 S.C. 200 likewise was a very special case in which it was said that without an offer of aliment another wrong would be created by granting interdict to a husband against his wife's return to the house. The whole matter was put into perspective by Lord President Cooper in Ben Nevis Distillery (Fort William) Ltd. v. North British aluminum Co. 1948 S.C. 592, where, quoting Lord McLaren's opinion in Clippens Oil Co. v. Edinburgh and District Water Trustees (1897) 25 R. 370 he pointed out (1948 S.C. at p. 598) that all the court was entitled to do when an immediate interdict would cause great public inconvenience was to make a declaratory finding and suspend the operation of the finding pending the progress of remedial measures. It would be a strange situation if the discretion of the court went beyond that to the extent that on a balancing of interests interdict might be refused altogether. That would mean, would it not, that a private citizen could seldom, if ever, resist any intrusion upon his rights through a development beneficial to the community and undertaken by a largest employer or public authority? Interest cannot overrule law (Buccleuch v. Cowan (1866) 5 M. 214) and Lord denounce suggestion in Miller v. Jackson that an Englishman home is no longer his castle cannot in my opinion apply to a Scotswoman's flat.

The nuisance here complained of falls into three separate compartments: the erection of stands for the accommodation of spectators, the rehearsals for the Tattoo, and the Tattoo performance itself. The erection of stands goes on usually from early June to the start of the Tattoo in August. During that period work proceeds on seven days a week from 8 a.m. to 8 p.m. and sometimes later. The system used for the framework of the stands is known as the Mero space-frame system, which involves the bolting together of lengths of tubular steel which are assembled in the esplanade, lifted by crane, and bolted into place. [His Lordship then considered the evidence in relation to the assembly of the framework and continued.]

The onus of proof of nuisance lies on the pursuer. She has to satisfy me that what she complains of occasions serious disturbance or substantial interference with her comfort: Watt v. Jamieson 1954 SC 56.1 have no doubt that she has done so. On any reasonable view of the evidence the conclusion that the construction noise is an invasion of the pursuer's rights amounting to a nuisance is inescapable. In reaching that conclusion I have not left out of account that the pursuer, though at present unemployed, may if she finds employment be away from home during working hours except at weekends. I have kept in mind too that the construction work has been phased so as to begin at the castle end of the esplanade where the noise would be least burdensome to the residents and that what I am concerned with here is not a typical residential locality, in respect that the castle attracts large numbers of visitors with numerous buses and cars manoeuvring on the esplanade during the tourist season and that the esplanade is from time to time the scene of displays of military pageantry and the like. The noises resulting from these activities are very different in intensity and in kind from the persistent construction noise. There is no evidence that they have materially disturbed the amenities of what is otherwise an exceptionally attractive area and though I appreciate that the character of the locality must be taken fully into account (Maguire v. McNeil Ltd. 1922 S.C. 174), I find nothing in the doctrine of locality to preclude the pursuer from obtaining protection against a material addition to the previously existing discomfort, if any, arising from proximity to a noted tourist attraction.

Counsel for the second defenders suggested that any annoyance or discomfort to the pursuer arising from noise could be substantially reduced by her keeping her windows closed. There was some evidence that construction noise was intrusive even when windows were closed but in any event I do not think that in dealing with such a situation the pursuer is required to do more than conform to the ordinary habits of life as a reasonable person. In my opinion that does not include a requirement to keep her windows shut throughout the better part of the summer, far less to instal an approved system of double glazing which, of course, would in any event be useless except when the window was closed. As the pursuer said, one of the nice things about summer is that you are able to open your windows.

Tattoo rehearsals take place of necessity in the early morning and in the late evening so that the esplanade may be left clear for traffic during the day. The morning rehearsal usually starts at 7 a.m. The evening rehearsals have ended by 11 p.m. except on one occasion when for an exceptional reason the rehearsal ran on to about 11.30 p.m. I have no doubt that the rehearsals including such items as martial music, motor cycle riding and loudspeaker announcements have been an annoyance to residents, as witnesses said they were. Colonel Dow however explained that measures have been taken to reduce the noise, that bands were not usually put on at the start of the morning rehearsal and that the total number of days involved is no more than four. In that situation I am unable to conclude that this source of annoyance can be regarded as so serious or persistent as to amount to nuisance.

What of the Tattoo itself? The average sound level of the performances is actually in excess of the construction sound levels but a loud noise may be tolerable if it arises in the context of what is a pleasurable and entertaining event. The Tattoo noises are of an entirely different type and quality from the sound of steel constantly banging on steel and the Tattoo goes on for a much shorter time, 18 evenings in the year, The pursuer maintains that it constitues a nuisance and has adduced a considerable body of evidence in support of that contention. She agreed however that when she chose to take the flat she was undeterred by the knowledge gained from previous visits to the Tatto that during three weeks of the summer she would be living in close proximity to a performance of similar character. Her initial reaction in 1977 was pleasurable, and though that reaction gave way in subsequent years to disenchantment and ultimately dislike I had the impression that that resulted less from the nature or content of the Tattoo than from the burden of repetition. She still stages parties at the flat to enable friends to enjoy the "nuisance" and she agreed that during the Festival weeks, when the Tattoo is going on, there are many other activities in the city which she might attend if she should choose to go out at the time of the Tattoo performances. Though the Tattoo noises were "bothersome" it was the high-pitched construction noise which made her feel edgy. [His Lordship then considered the other evidence in relation to the Tattoo performances and continued.] But taking all the factors I have mentioned into account I have been unable to conclude that the disturbance of the pursuer's home life and interference with her comfort arising from that source are of such a degree as to be characterised as nuisance.

The defenders have a plea based on section 8 of the Prescription and Limitation (Scotland) Act 1973 which provides that if, after the date when any right relating to property becomes exercisable or enforceable, the right has subsisted for a continuous period of 20 years unexercised or unenforced, then as from the expiration of that period the right shall be extinguished. Counsel for the pursuer argued that the plea was inept, in as much as the right to have the Tattoo declared a nuisance had not subsisted for a continuous period but arose each year in respect of that year's Tattoo. I do not think that that argument consorts with the pursuer's case. What she is concerned with is not any particular Tattoo but the recurrence of the Tattoo operations year after year. Though varying in detail in accordance with the programme of events the sound content of the Tattoo is broadly similar each year, and if I had been disposed to hold that the performances were a nuisance the defenders might well have had an answer in their prescription plea. The right to challenge the alleged nuisance existed from 1950 and no relevant challenge was made until 1980 when this action was raised. But on the construction noises the situation is different. The Mero system was not introduced until 1975 and it was agreed on all hands that that form of construction was entirely different in nature and in sound-content from the conventional type of tubular scaffolding formerly employed. It is not necessary for me to decide whether or not the earlier method constituted a nuisance or whether the new method occupies a shorter or longer time than the old. Suffice it to say that the evidence satisfied me that a significant change took place in 1975 in the nature and quality of noise arising from construction work, and if the type of construction work then introduced is a noise nuisance the pursuer is not debarred from having it so declared.

Counsel on behalf of the first defender adopting in advance the argument of counsel for the second defenders submitted that a declarator should not pass against his client on the additional ground that the Secretary of State had no responsibility for the erection of stands or the management of the Tattoo. The use to which the esplanade was put was entirely a matter for the second defenders. He sought to equate the position of the Secretary of State to that of a landlord under a lease who, he said, would not be liable for nuisance committed by the tenant. Oddly enough the authorities which he cited, Robertson v. Stewarts and Livingston (1872) 11 M. 189 and Caledonian Railway Co. v. Baird (1876) 3 R. 839, were both cases in which the landlord had been held liable. In any event, however, I do not think that a landlord and tenant case is on all fours with this. The Secretary of State as I understand it remains in possession and control of the esplanade and merely grants permission to the second defenders to make use of it. The contract between the Secretary of State and the second defenders includes a condition that no nuisance (recently altered on legal advice to "no unlawful nuisance") is created but that, I think, cannot avail the first defender when the Secretary of State has admittedly made no effort to monitor what was done by his licensees or to enforce the condition. It follows from my granting of a declarator against the second defenders that the declarator in the terms sought should pass against the first defender also.

Interdict is concluded for only against the second defenders. Their counsel took issue with the terms of the conclusion maintaining that they offended against a fundamental principle of the law of interdict in not being sufficiently precise to leave the alleged offender in no reasonable doubt as to what he is forbidden to do: Perth General Station Committee v. Ross (1896) 23 R. 885; Fleming v. Liddesdale District Committee (1897) 24 R. 281;Murdoch v. Murdoch 1973 S.L.T. (Notes) 13. Interdict, said counsel, must be directed against some specific act. The difficulty as I see it is to find an appropriate alternative. The pursuer could have no doubt sought to interdict the defender from constructing any steel and timber erection on the esplanade but that would have gone beyond what she requires and possibly beyond what the law allows her. There may well be methods of steel and timber construction which would not constitute a nuisance. The pursuer has accordingly adopted the formulation agreed in Fleming, and while I recognise the theoretical objection to it, it seems to me that a similar formulation here would not in practice give rise to any material problems. I cannot think that I am precluded from granting interdict in a form approved and indeed devised by their Lordships in Fleming. In Maguire the conclusion was in similar form and though interdict was refused on the facts no question was raised as to the terms in which it had been sought.

Finally counsel for the second defenders asked me, if all else failed, to suspend the operation of any interdict, as was done in the Clippens Oil case. He pointed out that this was not on any view a sudden and unexpected eruption of some noise-creating event. The action had been before the court since 1980 and the pursuer had not sought interim interdict. Meanwhile contractual commitments had been entered into which would be disrupted by immediate interdict. Efforts were being made to minimise construction noises. It appears to me that it would be proper to give effect to this submission. I do so the more readily since there is some indication in the evidence that methods of accommodating spectators may be devised which would be free from the features which make the existing methods illegal. [His Lordship considered that evidence and continued.] The committee will no doubt consider whether the time has now come for a re-appraisal of the arrangements for spectator accommodation so as to keep within the bounds of what is tolerable with regard to noise. But that is a matter for them. My function is simply to decide whether a nuisance exists and if so to grant in respect of its temporary continuance such indulgence as the law permits. So far as the preparations for the Tattoo are concerned I shall grant decree of declarator and interdict and suspend the operation of the interdict for a period of six months from the date of the interlocutor.

The second defenders reclaimed and the reclaiming motion was heard before the Second Division on 17th January 1985. The arguments of the parties appear from the opinions delivered.