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You are here: BAILII >> Databases >> Scottish Sheriff Court Decisions >> Newbould & Anor v. McEwan & Anor [2006] ScotSC 91 (22 December 2006)
URL: http://www.bailii.org/scot/cases/ScotSC/2006/91.html
Cite as: [2006] ScotSC 91
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Case Reference No: A2437/03
JUDGMENT BY
SHERIFF NOËL McPARTLIN
in the cause
CONSTANCE
POPIEL NEWBOULD and DAVID WILLIAM NEWBOULD
PURSUERS
against
(FIRST)
WILLIAM DUNCAN MacEWAN and
(SECOND)
LOTHIAN RECYCLING LIMITED
DEFENDERS
The
Sheriff, having resumed consideration of the cause, Grants the unopposed motion
for the pursuers, made at the bar on 24 November 2006, and in terms thereof
allows the record to be opened up and amended (1) by adding to crave 3 "(3) permitting
the obstruction flowing from the pursuers' said field through the former
landfill site; and thereby continuing said nuisance" and (2) by inserting after
"property" in line one of the first plea-in-law for the pursuers "and the
obstruction of drainage of surface water from the pursuers' property through
the said landfill site and the consequent flooding of said property" and, of
new, closes the record; and Finds in Fact:-
1. The
pursuers are Constance Popiel Newbould and David William Newbould, spouses,
residing together at Pentland House, Damhead,
2. The
first defender is William Duncan MacEwan, Farmer, residing at Pentland Mains
Farm, Loanhead,
3. The
pursuers have lived at Pentland House since 1989. Then, it was accessed only from the A701, on
the east. In 1992, Mr Newbould bought a
strip of land which stretched from Pentland House to the A703, on the
west. This strip of land is bounded on
the south by Pentland Mains Farm.
4. In
1995, Hartfield Homes Limited, a company in which the pursuers are the whole
shareholders, bought a field ("the stable field") extending to 6.9 hectares,
immediately to the north of the said strip of land.
5. In
September and October 1995, Hartfield Homes Limited built a road on said strip
of land from the A703. The road created
an access from the A703 to Pentland House and passed the stable field on the
way.
6. At the
stable field, a spur road was constructed which ran south and east from the
Pentland House access road to stables on the north east of the stable field.
7. In
1998, Hartfield Homes Limited conveyed the stable field to the pursuers.
8. Historically,
the stable field and the strip of land on which the Pentland House access was
built formed one parcel of land. It was
bounded on the south by Pentland Mains Farm.
9. The
stable field is higher on the north and west, and slopes to its lowest point at
the south east. The neighbouring land to
the east, including that belonging to Pentland House, rises.
10. The
part of Pentland Mains Farm bounding the stable field formed a bowl, with the
lowest land in the middle and the rest sloping upwards to the west, south and
east.
11. In the
19th century, the lowest part of the stable field and the lowest part of
Pentland Mains Farm were practically level with each other. Both areas were usually dry.
12. In the
early part of the 20th century, two sand and gravel quarries were excavated
within the bowl at Pentland Mains. As a
result ground levels were lowered and became slightly lower than the stable
field. The sand and gravel quarrying
stopped some time before 1940. Up until
1986, the stable field was under cultivation.
Between 1930 and 1986, it was farmed by the Kermacks, father and
son. They grew turnips and barley.
13. The
area between the two sand pits on the Pentland Mains side of the boundary
contained black and peaty soil, which extended a short distance into the stable
field. In the early years of cultivation
by the Kermacks the black peaty part of the stable field was ploughed by means
of a light tractor or horse. It was
softer than the rest of the field and ploughing could be hampered in wet
weather. In later years, with the advent
of heavy combines, the black peaty area was left uncultivated because of the
risk of the combine getting bogged down.
14. When
the Kermacks took over the stable field, it contained an artificial pond, the
Clippens Pond, on the south side of a man-made burn. The pond was at the eastern end of the
field. It was rectangular and made of brick,
the walls extending 3 feet above the ground.
It was connected to a wooden sluice in a part of the burn which was
brick lined. The burn and the pond had
been constructed to provide water for limekilns at Straiton.
15. The
Clippens Pond was drained and demolished during the Kermacks' occupation of the
stable field and the brickwork was buried in the ground.
16. The
lowest point of the stable field lies close to where the south west corner of
the pond was. After an exceptional fall
of rain, a pool of water measuring 15 yards by 10 yards, 15 yards from the
southern boundary would form. The depth
was not enough to cover someone's boots and would take about 2 days to drain
away completely.
17. In the
Kermacks' day, the stable field contained horseshoe drains, which had gradually
sunk. In addition, a 4 inch clay pipe
drain ran from the lowest point of the stable field over the southern boundary
into a ditch in the area between the sand pits on Pentland Mains Farm. The pipe was laid at a depth of no more than
2 feet (610 mm).
18. Natural
drainage from the stable field was through subsoil to the south.
19. Since
1986, the stable field has been used for equestrian purposes. Since 1996, Mrs Newbould has run livery
stables there.
20. When
the Pentland House access road was built, in 1995, it crossed three small boggy
wet areas. Apart from that, it was built
on ground generally dry.
21. Construction
of the road began at the A703 end. Top
soil was removed and the ground excavated to a depth of 2 feet, deeper in the
damp areas. The infill consisted of
brick and hard core scalpings, overlaid with whin dust. The road is about 400 metres long and runs
from higher ground on the west to lower ground on the east. It is generally about 600 mm above the level
of the stable field.
22. The
northern edge of the road is about 2 feet from the boundary with Pentland Mains
Farm. By the time the road was built
land filling had caused a bank to be erected on the Pentland Mains side of the
boundary. The building of the road
2 feet from the bank created a ditch, on the pursuers' land, at the base
of the land fill site.
23. Tarmac
to a depth of 3 inches was applied to most of the Pentland House access road in
1998. Part of it to the west, which is
subject to pot-holing, has not been tarmacked.
24. The
materials within the Pentland House access road are not impermeable. In the course of construction, the road was
rolled in order to compact the materials.
The degree of compaction is not uniform throughout the length of the
road.
25. The
Pentland House access road was built in ground which consisted of top soil to a
depth of 100 mm, then black dry peaty soil for a further 400 mm, then soft grey
clay. The sides of the road are backed
up with top soil.
26. The
man-made burn already referred to runs from the Boghall Burn to the west of the
A703, under that road and into the stable field on the west. It continues through the more northerly
higher part of the stable field in an easterly direction before turning north,
east and north again to the northern boundary of the stable field.
27. The
MacEwan family have farmed Pentland Mains since 1916. In 1980, the proprietor was the late W R
MacEwan, father of the defender. That
year, he granted a 12 year lease to Wimpey Construction (UK) Limited of
approximately 20 acres of land, including the former sand pits, bounding the
stable field on the north. In March 1981
Wimpey obtained planning consent for the disposal of inert builders waste and
excavated material on the site.
28. Tipping
was to be carried out in 2 phases and phase 2 could not be commenced until
phase 1 had been completed.
29. The
consent required the whole site to be restored to a condition suitable for
agricultural use by the end of 1991 at the latest.
30. It was
a further condition of the consent that the surface of the infilled area be
generally levelled and graded to merge with the levels of the surrounding
land. The final faces remaining on the
boundaries of the site must be dressed to a gradient not steeper than 7 degrees
(1 in 20) between the levels of the restored area and the immediately adjoining
land.
31. A
further condition of the consent was that Wimpey or its successors should
reinstate or lay ditches and field drains to the satisfaction of the planning
authority, in consultation with the Department of Agriculture & Fisheries
for
32. Wimpey
infilled the land fill site between 1981 and 1989 without installing any
drainage.
33. The
planning authority had approved infilling up to levels about 2 metres above the
stable field. When Wimpey stopped
infilling in 1989, the greater part of the site had been infilled to the
originally approved levels and covered with soil, although it had not been
restored to agricultural use. The
infilling of the north eastern part of the site had not been completed, leaving
a shallow hollow between the infilled area and the natural land surface to the
north east. The hollow was not drained
and usually contained standing water. In
addition, there were piles of debris and waste material scattered on parts of
the site, which were overgrown with weeds.
34. Although
infilling had not been completed, the defender had managed to plough part of
the site towards the west.
35. On
36. Shiel
then had meetings with the defender and Ian Ross, who was engaged in the
tipping business and known to the planning authority.
37. On
38. Shiel
pointed out that enforcement action would obviate the need for further planning
permission and that an exemption could be given from the need to obtain a Waste
Management Licence, provided the material used was soil or wholly inert material
and the quantities brought onto the site were limited (in this case probably no
more than 20,000 cubic metres).
39. On
40. Prior
to the service of the enforcement notice, the defender had taken part in
discussions with the planning authorities and Ross. He arranged that Ross should deposit
materials and sculpt the site, in order to comply with the enforcement notice. The defender left the day to day running of
the operation to Ross. They spoke about
drainage of the landfill site but came to no conclusion.
41. Ross
brought machines on to the land fill site shortly before the enforcement notice
took effect. He began operations by
bunding what was on the ground at the east end of the site. Over a period of 6 months from November 1995,
Ross brought material on site and formed it into a plateau sloping gently
downwards south to north to within about 10 metres of the stable field where it
rose slightly to a ridge or bund almost on the boundary.
42. The
ridge was at a height of 4 or 5 metres above the stable field, as opposed to
the 1-2 metres permitted in Wimpey's planning consent. The slope of the bank from the top of the
ridge down to the stable field was 1 in 6, as opposed to the 1 in 20 permitted
in Wimpey's planning consent.
43. Ross
had completed his operations under the enforcement notice by the middle of
1996.
44. Some
time in December 1995, there was some flooding in the stable field and on the
Pentland House access road.
45. During
1996 the pursuers erected stables at the east end of the stable field north of
the man-made burn. At that time, the
field was dry enough to allow them to drive a vehicle over it.
46. In late
1996, during torrential rain, water flooded across the Pentland House access
road into the stable field. The same
thing happened again in 1997, after which the pursuers raised a section of the
Pentland House access road for about 100 metres from its eastern end, by a
foot.
47. On
48. In
December 1997, Mr Newbould telephoned the Director of Planning and complained
about the flooding of the stable field as a result of run-off from the landfill
site.
49. Shiel
took the matter up with the defender.
During 1998, a new access road from the A703 to Pentland Mains Farm was
built on the landfill site. Part of the
new road ran parallel to and a short distance from the northern boundary with
the stable field. The road was cambered
to the south with a view to drawing water in that direction.
50. Throughout
1998, the pursuers continued to experience problems with flooding in the stable
field and frequently had to use a pump to drain the water into the man-made
burn.
51. On an
occasion in 1998 a flow of water burst the top of the bank on the landfill site
and ran down into the ditch on the boundary.
The ditch filled with water.
52. During
1998, the pursuers spoke to Ross on two or three occasions about the problem of
flooding and he undertook to sculpt the landfill site in such a way as to drain
water away from the stable field.
53. In June
1998, a recycling company run by Ross applied for a further extension to the
landfilling operations. The plan
accompanying the application showed a new ditch to be installed along the
southern edge of the landfill site access road and a new field drain to run
southwards through the landfill site to the Bilston Burn. The new drain was to be 300 mm in
diameter.
54. During
1999 Ross had a sub-contractor install a pipe.
It did not work satisfactorily.
As a temporary measure to alleviate run-off from the landfill site, the defender
dug a ditch halfway down the bank to the stable field and parallel to the
Pentland House access road. The ditch
was dug to a depth of about 2 feet.
55. In
1998, the defender had consulted the Scottish Agricultural College (SAC) about
constructing a new Pentland Mains access road over the landfill site and they
had prepared a plan of the road. It was
to be close to the northern boundary with a ditch parallel to it on the south
and connected by means of a pipe running south to a culvert at the end of the
old tip site.
56. In
November 1998, Mr Newbould had contacted Shiel about flooding from the landfill
site onto the stable field and the latter had a meeting about it with Ross and
a representative of SAC.
57. On
58. By the
end of 2000, the new Pentland Mains access road had been built and a sump or
pond had been dug on the landfill site to take water from the ditch alongside
the road. A 150 mm diameter pipe had
been laid from the ditch draining southwards through the landfill site to a
point several hundred metres away.
59. In
April 2000, during exceptional weather, the bund at the top of the bank on the
landfill site burst and the water flooded onto the stable field. On
60. By
November 2000, the drainage arrangements which had been installed in the
landfill site were effective enough to prevent water gathering on the Pentland
Mains access road, on the landfill site.
61. In 1999
and 2000, the defender removed stones from the landfill site by hand and
ploughed it in both directions. In 2001,
he sowed the site in grass.
62. Towards
the end of 2000, the pursuers were continuing to experience flooding problems
in the stable field and instructed solicitors, who took the matter up with the
planning authority.
63. In
2001, the defender consulted Mr Caunt of SAC about the flooding onto the stable
field and received a report from him dated
64. In
2002, Midlothian Council instructed John W Dickson of Heartland Environmental,
part of SAC, to investigate the run-off of water from the landfill site onto
the stable field and drainage issues.
His report is dated
65. In
periods of heavy rain, the south east corner of the stable field tends to
become flooded.
66. In
periods of heavy rain, water tends to flow across the Pentland House access
road at a
67. In
2005, the pursuers dug a ditch on the north side of the Pentland House access
road, running downwards from the west and parallel to the road, to the south
east corner of the stable field. The
ditch takes water from the west to the area which tends to be flooded during
heavy rain, where there is a pumping arrangement.
68. In
times of flood, the pursuers have for several years been pumping water from the
south east corner of the stable field northwards into the man-made burn.
69. If the
man-made burn is not regularly dug out and too much vegetation grows within it,
it may overflow onto the higher northern part of the stable field. This has happened only once since the
pursuers obtained the property.
70. The
main sources of water in the south east corner of the stable field are rain and
water permeating naturally through the top soil from higher ground on the west,
north and east.
71. Some
water also runs off the landfill site and some water permeates through the bank
of the landfill site into the ditch alongside the Pentland House access
road. The ditch is frequently water
logged. The water in it drains away
slowly.
72. The
Pentland House access road is permeable but impedes to some extent the free
flow of water through it.
73. In
dealing with the flooding of the stable field, the pursuers have incurred
costs.
Finds in Law:-
Nuisance not having been established, the pursuers are
not entitled to the orders craved.
Therefore
sustains pleas-in-law 1, 2, 4 and 7 for the first defender; repels pleas-in-law
1, 2 and 3 for the pursuers; Assoilzies the first defender from craves 1, 2, 3
and 4 of the Initial Writ; reserves the question of liability for expenses and
appoints parties to be heard thereon on 6 January 2007 at 11am.
.
NOTE
1. Pleadings
The
pursuers in this action are Mrs Constance Popiel Newbould and David William
Newbould. There are two defenders, the
first defender being William Duncan MacEwan and the second defender Lothian
Recycling Limited. After sundry
procedure, a proof before answer was allowed.
It took place on dates in October and November 2006.
The
pursuers have four craves. The first is
as follows:- "to find and declare that (1) the discharge of surface water from
the landfill site on Pentland Mains Farm immediately to the south of the
pursuers' property onto the pursuers' property and (2) the obstruction of
drainage of surface water from the pursuers' property through the said landfill
site constitute a nuisance".
The
second crave, which was not insisted upon, was for an order against the first
defender to abate the nuisance by taking certain steps. A motion to amend this crave had been refused
about a week before the Proof.
The
third crave has been amended in terms of the unopposed motion made by counsel
for the pursuers in closing submissions and reads as follows:- "to interdict
the first defender, his agents, contractors and employees and all those acting
on his behalf or under his authority or instructions from (1) discharging or
permitting the discharge of water from that part of the former landfill site at
Pentland Mains Farm lying adjacent to the access roadway leading from the
Seafield moor road to Pentland House onto the said roadway or onto the field
belonging to the pursuers lying immediately to the north west of the said
access roadway; (2) collecting water in ponds or ditches on the said former
landfill site in such a way as to permit the same to flow from the said former
landfill site onto the said access roadway or onto the field belonging to the pursuers
lying immediately to the north west of the said access roadway; (3) permitting
the obstruction of drainage of surface water flowing from the pursuers' said
field through the former landfill site; and thereby continuing said nuisance".
Crave
4 is for damages against the defenders jointly and crave 5 is for expenses.
The
first plea-in-law for the pursuers was amended during the Proof and further
amended on the unopposed motion of the pursuers in closing submissions and
reads as follows:- "The discharge of water from the landfill site onto the
pursuers' property and the obstruction of drainage of surface water from the
pursuers' property through the said landfill site and the consequent flooding
of said property constituting a nuisance as condescended upon, declarator and
interdict should be pronounced as first and third craved".
The
pursuers have two other craves and these relate to damages.
The
first defender has 7 pleas-in-law, 2 of which are preliminary and the remainder
pleas to the merits.
During
the Proof the case between the pursuers and the second defender was settled
extra-judicially and that is the subject of a separate interlocutor.
The
pleadings narrate that the action concerns the flooding of a field belonging to
the pursuers and bounded by a landfill site belonging to the first
defender. Article 4 of condescendence
gives the history of landfilling and local authority regulation of the site,
particularly with regard to drainage, since 1981. In article 5, it is averred that the effect
of landfilling has been to raise the level of the landfill site to between 3
and 5 metres higher than the pursuers' property, with a slope down to their
property of 1 in 6, significantly steeper than allowed for in the original
planning consent, with the result that natural drainage is now towards the
pursuers' property. The pursuers go on
to aver, in article 6, that the natural drainage was formerly in the opposite
direction, that is to say, from their ground onto to that of the first defender. They aver that, since the substantial
completion in 1996 of the infilling works, their property has been subjected to
increasing flooding in times of heavy rain.
The
case for the first defender, as set out in answer 6, is that there was no
natural drainage from the pursuers' field onto the defender's land, the two
areas being almost level, before infilling.
The defender attributes the pursuers' flooding problems to the
construction by them of an access road close to the boundary between the two properties
and avers that the road forms an "impermeable barrier to free drainage". The first defender also has averments that a
man-made burn on the pursuers' land contributes to the problem.
There
are averments from the pursuers setting out the circumstances which have
rendered the first defender liable for the nuisance created by the landfill
operation, although it was carried out not by him but by a contractor. These averments are met by a denial and an
averment that the first defender was not in occupation of the landfill site
during infilling.
2. Evidence
The
witnesses in this case were referred to a number of maps, photographs, planning
documents, letters and reports. There
was a site visit. The pursuers gave
evidence and called three witnesses. The
first defender gave evidence and called one witness.
(1) Witnesses for the pursuers
(a) Constance Newbould
Mrs
Newbould stated that she and her husband acquired Pentland House in 1989. Pentland
House lies to the east of the land which is the subject of this action. That land, which I shall refer to as "the
stable field" had been in use for equestrian purposes since 1986. In 1992, Mr Newbould acquired from the owners
a strip of land suitable for the construction of an access to the A703 (referred
to in the pleadings and in some of the productions as the
Mrs
Newbould was shown various photographs, some of them taken by her. In chronological order, is 6/5/1 and 1A, a
photograph taken about 1960 from Pentland Mains Farm and showing the stable
field with the man-made pond in it. Then
there is an aerial photograph dated 1986 (5/1/5 of process figure 3), which
shows the land fill site, which by that time was being operated on Pentland
Mains Farm, Pentland House, the stable field, ploughed except for a narrow
strip at the south east (the man-made pond had disappeared) and the A703.
Another
photograph shown to Mrs Newbould was one taken from the Pentlands in 1994
(6/2/2 of process) which showed the stable field in the foreground and the land
fill site as it had been left unfinished by Wimpey. She pointed out the pool of standing water,
which she said was as big as the court room, among the land fill
materials. It was the presence of this
pool that caused Mr Newbould to write to Mr Shiel the planning officer in
October 1994 out of concern for the danger it posed for their young son.
In
1995, the pursuers had the access road from the A703 built. In 1996, Mrs Newbould started her own livery
business at the stable field. That year
they built stables and the ground was dry enough to allow a vehicle to be
driven across it from the south east corner to the bridge over the man-made
burn.
Mrs
Newbould said that things began to change in 1996. There was flooding across the access road and
into the stable field. In 1997 the
pursuers had to raise the road a foot over a distance of 100 yards towards the
eastern end. However, the flooding
problem continued.
Mrs
Newbould was referred to plans and documents, which showed that Wimpey got
permission in 1981 to infill the site.
They had left the site unfinished.
Mrs Newbould was shown the enforcement notice served on the father of
the first defender in 1995 to complete the infilling. Ross, who came to do that job, introduced
himself to the pursuers. Mrs Newbould
clearly associated the operations carried out by Ross with the flooding
problems on the stable field. She stated
that he began at the eastern end of the land fill site by pushing earth up into
a bund or ridge. He deposited a great
quantity of material and built the site up from a level of 1 or 2 metres above
the stable field to levels 3-5 metres above it.
She was shown the original Wimpey planning consent (
Mrs
Newbould said that the bund burst and water flowed down the slope from the land
fill site onto the stable field, as seen in photographs taken in 1998 (5/6/4 of
process). She spoke to various
photographs showing extensive flooding in the stable field at the south east
corner, for example 5/1/11a taken in 2000 and 5/4/1 taken in October 2002.
Mrs
Newbould described how a quarter of the pursuers' land had become unusable
because of flooding. This included the
area on which a large pond or puddle tends to form and a strip about 8 metres
wide parallel to the access road which became too soft for the horses. Since 1997, the pursuers have had to resort
to pumping to drain their land. They
pump water into the man-made burn. In
2005, they dug a trench on their side of the access road from the west to lead
water to the pump. As soon as the trench
was dug water began to seep into it.
Mrs
Newbould pointed out that the man-made burn could cause problems if it were not
dug out every year. If the vegetation
became too thick, the burn could overflow into the area of the stables and the
stable field as it did once in January 2002.
The
witness was familiar with the actions taken on the landfill in relation to
drainage. A ditch dug halfway down the
embankment simply overflowed and water carried on down to the foot. Another ditch built in 1998 on the inner side
of the land fill access road simply filled with water, which flooded northwards
across the land fill access road and down the embankment to the pursuers'
property. A pipe drain 100 mm in
diameter laid across the land fill site to the south stopped functioning after
a while. Eventually it was replaced by a
bigger pipe possibly 150 mm in diameter.
By about 2000, a pond had been created next to the land fill access
road. The pipe led southwards from the
pond, although photographs taken in 2005 showed clumps of vegetation at the
mouth of the pipe (
The
witness referred at various times in her evidence to aerial photographs taken
in 2005 (5/6/13 of process) which show the present situation, including what
appear to be wet patches on the land fill site, although it appears to be
seeded in grass, and the puddle in the south east corner of the stable
field.
With
regard to damages, Mrs Newbould spoke to various items of loss claimed by the
pursuers. 5/6/10 of process is a
quotation from the pursuers' own company Hartfield dated 9 August 2005 to
repair pot holes over 90 metres of the access road, at a total of £9,782.25 (including
VAT). The pot holes are claimed to be
due to water running over and through the road.
The witness said that she had compiled the quotation herself on the
basis of the cost of tar and the hire of machinery. The company had built roads before. The work has not actually been carried out.
Items
At
the end of examination in chief, Mrs Newbould stated that if declarator and
interdict were granted she would co-operate with the defenders in solving the
drainage problem and there would be no problem about having pipes on the
pursuers' land.
In
cross examination on behalf of the first defender, it was suggested to Mrs
Newbould that the stable field first flooded in the winter 1995/1996 but she
maintained that the road first flooded in 1996.
She did not recall if the field had flooded at the same time but by 1998
it had flooded on a few occasions and the pursuers had to buy a pump.
Mrs
Newbould was asked questions about the effect of the man-made burn on the
stable field, in light of a report by John W Dickson which concludes that water
permeating from the base of the man-made burn some distance to the west was a
source of water in the low part of the stable field. She dismissed this theory on the basis that
the observations taken by Mr Dickson did not take account of pumping and on her
own experience when the burn overflowed in January 2002 that blocking it at a
culvert beyond the A703 on the west made little difference to the level of
water in it.
The
witness was questioned about the digging of the ditch alongside the access road
and re-stated that water continued to come into the ditch from the roadside
after it had been dug.
Asked
about the access road, Mrs Newbould stated that it was 3 metres wide and that
she discussed its construction before it was built with her brother who is a
builder and who acted as site manager.
The top soil was removed to a hard base and after the materials had been
laid a roller was used. It was put to
the witness that her access road was the basic cause of the problem but she did
not accept that nor that it was any part of it.
I
have not rehearsed every detail of Mrs Newbould's evidence. It was clear from it that a considerable
degree of flooding has occurred and continues to occur on the stable
field. Although she spoke to water
bursting over the bank from the land fill site in the past, she accepted that
this had not happened since 2004. In
addition she accepted that water does not regularly run across her access road,
except sometimes towards the west, and was of the view that water coming from
the land fill site was reaching the stable field mainly by going through,
rather than over, the road.
In
closing submissions, both counsel endorsed Mrs Newbould as a credible witness
and I have no hesitation in accepting her as such, although Mr Campbell for the
defender questioned her reliability as to the timing of the first flood, when
compared to the evidence of the first defender.
(b)
David William Newbould
Mr Newbould is a consultant in the oil industry and is away all over the world a lot of the time. He was well aware of the problems and particularly remembered major flooding in 2000 or 2001. He also remembered speaking to Ross who did nothing about the problems.
(c) Thomas
Kermack
Mr
Kermack, now aged 75, was the last person to farm what is now known as the
stable field. He and his father before
him farmed it between 1930 and 1986. Mr
Kermack's evidence was valuable in that he could give first hand evidence as to
the state of the stable field before land filling began. He told us that the man-made Clippens Pond,
fed by the man-made burn, was located on the field. The pond was drained and demolished in 1960
and I think it is clear that it has no bearing whatsoever on the present
problem.
However,
Mr Kermack was able to tell us that the lowest point of the field was at the
south west corner of the pond and 15 yards from the southern boundary. Clearly the drainage was not perfect because
a puddle 15 yards by 10 yards would sometimes form in the field. Mr Kermack said that the water "would not
cover your boots" and that it would take two days to drain. Natural drainage was to the south over the
boundary into Pentland Mains Farm to a low area between two sand pits. He drew an indication on the ordnance map
Kermack
told us that there was a 4 inch clay pipe drain at a depth of no more than 2
feet going from the low point of the stable field over the boundary. He considered that it worked well but, even
without it, water would still drain to the south.
In
cross examination, Mr Kermack was asked about the land fill site and he said
that he had been told by the Council that the proposal was to fill in the two
sand pits and he had no objection to that.
By the time he left, the west sand pit had been filled in. On being shown the photograph of the site in
1994 (
Both
counsel agreed that Kermack was an important witness and wholly credible and I
am of the same view. Counsel for the
pursuers described him as astute and I would agree with that. Counsel for the first defender commented that
it was strange that the witness had little recollection of the Wimpey
operations, which apparently started in 1981, but, as I have mentioned above,
he was aware that one of the sand pits had been filled in and it may be that
that was all that had happened by 1986.
Counsel for the first defender also pointed out that, although Kermack
saw the 1994 photograph as a cause for panic, in fact there was no flooding
problem at that time.
(d) Michael Shiel
Michael
Shiel, aged 57, is now a Scottish Executive enquiry reporter. Between 1976 and 2006 he was a planning
officer and was concerned with the land fill site from 1980 until he left
office to take up his present appointment.
I do not intend to go into Shiel's evidence in great detail. He spoke to all of the correspondence,
applications, plans and consents relating to this matter. In the original consent Wimpey were allowed
to build up the site to certain levels, with slopes of limited steepness. Wimpey did not accept a responsibility to
submit drainage proposals before they started and they were allowed to embark
upon the first phase of infilling without submitting any. It was, however a condition of the consent
that the land be restored to agricultural use.
The
Council's attention was drawn to the site in October 1994 when Mr Newbould
wrote and complained about the danger created by the pond which had
appeared. About the same time other
neighbours were raising problems about flooding alleged to be related to the
land fill site. As a result, Shiel
recommended that the planning authority take enforcement action and an
enforcement notice was served on the first defender's father to comply with the
Wimpey consent and complete the infilling.
The notice was dated November 1995.
Shiel's
next involvement was in December 1997, when he wrote to the first defender, now
owner of the land fill site, about a complaint from Mr Newbould about flooding
and reminded the first defender about the obligation to install drainage in the
site and to do so in such a way as to prevent water spreading from the land
fill to neighbouring property. This
condition had been repeated in a planning permission for an extension to the
land fill site granted in May 1997.
On
In
2002, the Council itself consulted SAC about the problem. SAC was no longer acting for the first
defender or Ross. The Court had moved on
and there was no apparent conflict of interest.
In
cross examination, Shiel said that he had visited the site in April 2006 and,
in general terms he was satisfied with its appearance and that most of it was
in productive agricultural use. The pipe
from the pond was functioning although part of the land fill site was still
poorly drained, near the top of the plateau.
This was a problem for the first defender rather than the pursuers.
It
was not suggested that Shiel was anything other than a credible and reliable
witness but it is clear that his main concern was the restoration of the land
fill site to agricultural use rather than the resolution of the flooding
problem on the pursuers' property.
(e) John Pyper
John
Pyper is a chartered engineer employed by Allen, Gordon & Co,
Pyper
and his firm were consulted by the pursuers in connection with the flooding
problem and he made reports which he spoke to in evidence. There is a correlation between Pyper's
reports and those of John Dickson who was initially consulted by Midlothian
Council and called as a witness by the first defender.
Pyper
was examined over five days and spoke in great detail to his reports, with
reference to maps, including geological drift maps, and photographs. Inevitably, he commented on Dickson's
findings. I do not propose to deal with
Pyper's evidence in the detailed way it was addressed in court but will simply
indicate his main conclusions and his response to those of Dickson.
Pyper
described the catchment area for water arriving at the lower parts of the
stable field as small, being restricted by the man-made burn, which prevents
water permeating from the higher parts on the north. Test holes dug by Pyper near the man-made
burn did not show that water permeates into the field from the burn itself. Historically, there was no problem with
drainage on the stable field. The
problems began with the continuing development of the land fill site, which
altered drainage arrangements. The land
fill site is not well drained, the pond and the pipe arrangement being
insufficient for an area of that size.
More particularly, the drainage is installed at a height 3 or 4 metres
above the level of the stable field. As
a result, much of the rain water arriving on the land fill site percolates
vertically to the base of the site. From
the build up of water at the base there might be a hydraulic gradient towards
the stable field. There is also some
run-off from the land fill site. The
water coming from the land fill site flows across or through the Pentland House
access road towards the west or gathers in the ditch at the foot of the
embankment towards the east, from where it percolates through the access road
into the field itself.
Pyper's
findings are contained in four reports and are the result of most thorough
investigation, including simple observation, observation from the digging of
test holes, the taking of water levels and the carrying out of detailed
calculations in order to establish, for example, the percentage contribution of
various possible sources to the volume of water arriving in the stable field
and the size of the area which the drainage arrangements and the land fill site
are able to deal with. He was cross
examined as to how robust his methods were, particularly with regard to the way
levels were taken on either side of the access road, and with regard to assumptions
made about areas and rainfall in his calculations.
In
my view, Pyper dealt with these questions competently and I agree with Mr
Murphy that he was a most thorough and professional witness.
(2) Witnesses for the first defender
(a) William Duncan MacEwan
The
first defender is a 45 year old farmer.
His family have farmed at Pentland Mains since 1916. He became owner of the farm from
With
regard to the land fill site, Wimpey tipped on it in the early eighties. It had a lease until 1992 and did not tip
after that date. Referring to the 1994
photograph (6/2/2 of process), MacEwan said that part of the site to the right
of the photograph was up to finished level by then and he had ploughed it,
although it had not been sown with grass.
When
the MacEwans became aware of the complaint from the Newboulds about standing
water on the site, the witness had a meeting with Ian Ross and Michael Shiel,
planning officer. It was obvious that
Ross was respected by the Council. He
had materials available to complete the site and the enforcement order was
made. The operations were completed by
the spring of 1996. The first defender
was not involved in the day to day running of the land fill operation.
The
first defender remembered the Pentland House access road being laid. He thought that it was in September 1995 and
was definite that it was completed during his father's time (his father died on
MacEwan
became aware of complaints of flooding in the stable field from Shiel in
1997. He discussed drainage with Ross
and SAC. In 1998, an access road was
created on the land fill site cambered in such a way as to run southwards into
ditches. The ditch halfway down the
embankment towards the stable field was a temporary emergency measure taken by
Ross. In 1999 a pond was installed on
the inner side of the land fill access road with a pipe going south to a man
hole cover. The pipe got crushed and did
not function. A second pipe was laid by
a contractor and did not work. In late
spring or early summer 2000, Ross laid the pipe presently in place.
MacEwan
agreed that the slope of the bank down to the stable field is steeper than that
contemplated by Wimpey. Ross was in
control of the site and his remit was to tidy it up. Ross had been present during the discussions
with Shiel and MacEwan regarded him as someone respected by the Council.
In
cross examination, the first defender was questioned closely about the precise
nature of his arrangements with Ross.
Counsel for the pursuers pointed out that there are averments on record,
at answer 4, that no formal agreement was entered into between him and
Ross. The witness said that Ross paid
him about £8,000 and that Ross was to tidy up the site. Ross was liaising with planning and knew that
he would have to comply with its requirements.
When
it was put to the first defender that the first semblance of dealing with
drainage on the land fill site was in 2000, he said that he supposed that that
was true. He accepted that the drainage
pipe within the land fill site blocked in 2000 and flooded the land fill access
road. He agreed that the 100 mm pipe
originally installed did not work correctly.
The first defender did not accept that water from the land fill site
caused flooding on the stable field. He
was referred to the letter to him from Caunt of SAC dated
It
was put to the first defender that he had altered the natural state of the land
by placing a huge amount of material in an area where there was natural
drainage. He accepted that material had
been deposited but had not been aware of where the natural drainage had
been. He and Ross did not think that
drainage was an issue at the beginning and did not take advice about it. It was put to the first defender that he knew
that the pursuers relied on the area for natural drainage. His reply was that, if so, it was not visible
on the surface.
Counsel
agreed that MacEwan was credible and reliable but Mr Murphy observed that the
witness seemed initially to claim that Ross had agreed to comply with planning
conditions but then seemed to backtrack and say that Ross was simply to tidy up
the site.
(b) John
Mr
Dickson is an Environmental Consultant with SAC (
Dickson
gave his evidence over four days, with reference to his reports and to maps,
photographs and other documents. He
commented on Pyper's reports. I do not
propose to rehearse Dickson's evidence in detail. In summary, Dickson accepted that the pipe
draining the land fill site is not adequate.
However, the presence of vegetation and crops means that much of the
water landing on it is absorbed by crop uptake and evaporation. He saw no signs of gullies on the boundary
bank to indicate regular overflow.
Dickson
did not accept Pyper's view that water percolating vertically down into the
land fill site may be drawn by a hydraulic gradient to the boundary with the
pursuers' land. Dickson stated that
water will flow vertically downwards until it can go no further. He had not seen a massive amount of water
oozing out of the land fill site at the embankment. The boundary ditch was not always full of
water and, in his report of
Dickson
concluded that the land fill site does not make a substantial contribution to
water arriving on the stable field and that the sources of water there are the
same as they have been historically.
This includes water permeating from the man-made burn. The critical matter, so far as he is
concerned, is the Pentland House access road.
In his first report, he describes this access road as an impermeable
barrier. In his evidence in chief, he
accepted that the road materials might be permeable but that the sides and base
of the road are likely to be impermeable and water could not go through it in
quantity.
In
cross examination, Dickson agreed that he would expect water to seep through
the material within the road but account had to be taken of any material built
on the sides of the road. There is some
barrier, which he has been unable to investigate. The effect of the barrier created by the road
is to prevent water escaping from the stable field and that is the cause of the
flooding. He also accepted that Pyper's
test holes did not show water permeating from the man-made burn, at the point
where they were dug.
Mr
Murphy described Dickson as straightforward and honest but unsatisfactory. The team method of compiling reports was odd,
particularly as the person who took measurements was not called. Counsel submitted that Dickson departed from
the de quo of the case. His
original position, echoed in the pleadings at answer 6, that the road was an
impermeable barrier, was departed from.
His opinion now rested on the untested suspicion that the verges of the
road were the problem.
Mr
Campbel defended Dickson's methods. His
approach showed an open mind, in that once he was advised of the type of
material in the road he was prepared to review his opinion.
I
regarded Dickson as a reliable witness.
The team approach to the preparation of reports seems appropriate and
draws on the expertise of other members.
I do not think that each one has to be called as a witness. I also regarded Dickson as objective. He had no connection with Caunt of SAC who
had previously advised the first defender. Caunt had left the College before
Dickson was instructed. I agree with Mr
Campbell that Dickson did not wholly depart from his position on the
permeability of the road and he remained of the view that water was not flowing
freely through it.
3. Submissions
(1) Submissions for the pursuers
On
behalf of the pursuers, Mr Murphy made clear and helpful submissions, with full
citation of authority, and I trust that I do him do disservice if I do not
rehearse them in detail. After moving
the unopposed amendment to the first plea-in-law for the pursuers, already
mentioned, he moved me to sustain that plea and grant declarator in terms of
crave 1. He then moved that I grant
permanent interdict in terms of crave 3, subject to the unopposed amendment,
already mentioned. It might be reasonable
to defer decree or suspend its operation for a period of 6 months, in order to
allow the first defender time to carry out or make proposals for remedial
works.
Mr
Murphy moved that crave 2 for the abatement of the nuisance should be dismissed
in hoc statu, for want of
insistence. He took the view, on the
evidence of Pyper, that the method required by the crave was too onerous on the
first defender and the pursuers simply relied on the interdict, an alternative
crave, as the primary remedy. Absolvitor
would be inappropriate, as there had been no adjudication on the crave.
The
third plea-in-law for the pursuers should be sustained and damages granted in
the sum sued for, with interest. Pleas
1-7 for the first defender should be repelled.
With
regard to the law of nuisance, Mr Murphy cited a number of authorities, from
which he derived certain principles, which were not disputed by Mr
Campbell. It was accepted that it is
sufficient to prove that a defender has materially contributed to a nuisance,
one hundred per cent responsibility not being required. A distinction has to be drawn, also, between
the natural and non-natural use of land and precautions must be taken against
injury to neighbours when constructing an opus
manufactum, even if the operation is
carried out by an independent contractor.
Foreseeability and knowledge of risk render an owner liable. An owner is also be liable if he continues or
adopts a nuisance and does nothing to abate it, after it comes to his
knowledge.
Liability
is not absolute. There must be culpa (RHM Bakeries v Strathclyde Regional Council). Mr Murphy described culpa as a flexible term, not identical to negligence, but
inferring a degree of personal responsibility.
Finally,
the injury to the neighbour must be plus
quam tolerabile.
With
regard to interdict, Mr Murphy accepted that it was a matter for the discretion
of the court but an award of damages would not be a sufficient remedy for the
pursuers, in this case, in view of the continuing nuisance. Although interdict was designed to enforce a
negative obligation, it remained competent even if positive action were
required to comply with it.
Mr
Murphy suggested that the case might be approached by asking three questions -
whether there is a nuisance, whether the pursuers have satisfied the plus quam
tolerabile test and whether they have
proved culpa. There was no real dispute that the pursuers
have had to put up with an intolerable situation. The proof of culpa arose from the type of conduct complained of, which was the
development of an opus manufactum in circumstances where
flooding of neighbouring land, without any precaution against flooding and with
no drainage, where abnormal damage to neighbouring land was foreseeable or a
special risk (Kennedy v Glenbelle). These matters having been established, the
onus shifted to the defender to prove that the nuisance had been caused by a
third party, in this case the pursuers themselves, but the defender had failed
entirely to do so. He had failed to show
that the Pentland House access road was an impermeable barrier.
Mr
Murphy then examined the evidence. His
views on the witnesses have already been referred to. He submitted that, in 1995 when action was to
be taken on the enforcement notice, it was incumbent on the first defender to
apply his mind to the situation. According
to Dickson drainage could have been provided by the installation of a pipe at
the base of the land fill site but the defender thought only of tidying up the
site and took no advice whatsoever about drainage, although flooding was an
identifiable problem.
Mr
Murphy submitted that the volume of water arriving at the stable field had
increased dramatically and pointed to the evidence of Pyper. The real candidate for the source of this
addition was the land fill site. All
that has been done by the defender to retrieve the situation is to install one
plastic pipe to drain the upper surface of the land fill site. As a result, water percolates and none of it
will drain to the south as the natural drainage has been altered. It having been established that the Pentland
House access road is permeable, it cannot be the culprit.
(2) Submissions for the first defender
Mr
Campbell moved that I sustain the first, second, fourth and seventh
pleas-in-law for the first defender and assoilzie him from all the craves,
including the crave for specific implement, the matter having been to
proof. He invited me to repel the
pleas-in-law for the pursuers.
Mr
Campbell helpfully accepted the basic legal propositions advanced by Mr Murphy
but opposed the way in which the latter sought to apply them to the present
case. It was too broad to say that the
creation of an opus manufactum coupled with objective damage
transferred the onus of proof to the defender.
While the onus might transfer in a case such as RHM Bakeries, that was a case in which the link between the damage
and the event causing it was obvious. In
the present case, there was a dispute as to the cause of the damage and that
distinguished this case from any of the cases cited. The onus, therefore, should remain on the
pursuers.
Mr
Campbell also pointed to the difficulty in establishing culpa on the part of the first defender. The context was that the land fill site had
been in place for years without causing a problem, before the first defender
set about completing the work. It could
not be seen as work of a kind which was likely to cause harm. Mere failure to take advice did not place the
defender in the position of being reckless and he instructed a contractor
experienced in land fill work.
With
regard to the remedy of interdict, it should not be granted if unenforceable or
incapable of being obeyed (Barony
Parochial Board v Cadder Parochial Board).
In addition, the pursuers were seeking to use interdict as a compulsitor
to do something positive in itself, not merely as an incidental effect of the
order, which was not appropriate (Church
Commissioners -v- Abbey National).
On
the evidence, Mr Campbell did not agree that Dickson had departed wholly from
his view regarding the impermeability of the road. While Dickson accepted that the materials
within it were impermeable, the road nevertheless acted as a barrier. After reviewing the evidence, particularly
the respective merits of that of Pyper and Dickson, Mr Campbell summarised his
position by submitting that the pursuers had not demonstrated either that the
land fill site was discharging a material quantity of water onto the stable
field or that the existence of the land fill site was materially impeding
drainage of the stable field. The
existence of the Pentland House access road as a barrier was borne out by the
congruence in time of the building of the road and the onset of the
problem. The road itself was an opus manufactum. Finally, culpa
was not established.
4. Decision
In
my view, having considered the whole evidence and submissions, the pursuers
have failed to prove that the development of the land fill site from 1995 is a
material cause of the flooding on the stable field. The evidence shows that, on occasions,
specifically in 1998 and 2000, the bund on the land fill site burst and water
flowed down the bank to the stable field, although there was no evidence of
gullies on the bank which might indicate this was a regular occurrence. In any
event, since the installation of the present drainage system in the land fill
site, in about 2000, whatever criticisms may be made about its adequacy to
drain the landfill itself, there has been no evidence of significant run-off of
water from the land fill to the stable field.
If water is travelling from the land fill site to the stable field,
therefore, it must be permeating through the soil into the ditch alongside the
Pentland House access road or through and over the road at a higher point on
the west. That is the evidence of Pyper,
although he concedes that some of the water arriving at the western point comes
from another source. Pyper bases his
evidence on his observation that there was a head of water in the ditch higher
than that across the road in the field and on calculations that the total
amount of water reaching the stable field is now much greater than before. His view is backed up by his interpretation
of test holes dug by him. He has
advanced, what can only be a theory, that rain falling on the land fill site,
not collected in the drainage system there, percolates downwards within the
land fill site to the base, where it builds up and is drawn by hydraulic
gradient towards the stable field.
According
to Dickson, however, there is no visible sign of that at the boundary and his observations
as to relative heads of water go the other way.
In addition, his calculations are to the effect that the total amount of
water arriving on the stable field is the same as it has always been. The explanation for the flooding is the
inability of water arriving on the stable field to drain freely. According to Dickson, this is due to the
Pentland House access road forming a barrier, although he accepts that the
materials in the access road are not in themselves impermeable. In my view,
while the absolute impermeability of the road has not been proved on the
evidence, the indication is that water does not flow completely freely under or
through it. Where some water flows over
the road at the western point, I prefer Dickson's evidence, based on observation,
that the quantity involved there is not great and it is accepted that some of
it does not originate in the land fill site.
The
whole tenor of Pyper's evidence is that the flow of water within the landfill
is now to the north, which is the reverse of what it used to be. As a result, the land fill site not only
conducts water northwards it prevents any flow from the stable field to the
south. Dickson accepted that water which
gathers in the ditch on the boundary does not drain freely away but he
attributes that to soil conditions, not to a reversal of the drainage flows,
his position being that the natural flow is still to the south. I am not persuaded that Pyper is right.
Added
to the conflicting opinions of the experts is the history of the two sites,
which shows that the initial land filling was not accompanied by flooding
problems on the stable field and that, when flooding problems began, they
coincided with both the completion of the infilling and the construction of the
Pentland House access road in 1995 and 1996.
Taking all these factors into account, it is difficult to say precisely
what the cause of the flooding is. I do
not think that there are any grounds for the view that the pursuers have
presented a prima facie case which shifts the burden of
proof onto the first defender. I see no
reason not to proceed on the
basis that the burden of proof rests on the pursuers, as is normal. In my view, for the reasons outlined, the
pursuers have failed to discharge that burden.
Even
if the pursuers had proved that the completion of the land fill site by the
first defender were a material physical cause of the flooding, there remains
the problem of culpa. While it is accepted that land filling
constitutes non-natural use of land, it is not clear how, in the particular
circumstances of this case, the first defender was at fault, even in a general
way. This is not a case, for example, of
interfering with a natural stream. The
drainage from the pursuers' land onto the defender's land was subterranean and
invisible and it is quite credible that the defender knew nothing of it. In any event, the initial land filling had
caused no difficulties and it was hardly foreseeable that the mere completion
of the task would do so. The planning
consent and enforcement notice imposed conditions to restore the land fill site
to agricultural land, which involved installing drainage, but did not refer
directly to the drainage of neighbouring land.
Even although the first defender did not seek advice about these
matters, he instructed a professional land fill contractor, who had been party
to consultations with the planning authority.
In all these circumstances, I am not satisfied that culpa could be brought home to the first defender.
Accordingly,
I have sustained pleas-in-law 1, 2, 4 and 7 for the first defender and repelled
those for the pursuers. I regard
absolvitor as the appropriate disposal of all of the craves, including the
crave for specific implement. Although
the pursuers do not insist on that crave and move for dismissal, I think that
the first defender, having successfully opposed the declarator, on which the
crave for specific implement depends, is entitled to absolvitor.
Even
if nuisance had been established, it appears on the evidence that compliance
with the interdict by the defender would now be almost impossible. According to Pyper, the problem should have
been addressed by Wimpey when land filling began and it is not feasible to take
the necessary steps now. I would not be
prepared to pronounce an interdict in these circumstances, where compliance is
impracticable, although I regard the crave as seeking the enforcement of a
negative, rather than a positive, obligation and, therefore, competent.
In
moving for decree for damages, Mr Murphy referred to the various invoices and
estimates lodged and noted that those incurred by and relating to the pursuers
personally amounted to £35,000. In
addition, £6,755 related to losses met by Hartfield Homes Limited, the company
wholly owned by the pursuers. The
evidence was that the pursuers would be responsible through directors' loan
accounts to the company for the latter sum.
It was therefore recoverable by them (Cottrill v Steyning and
Cases referred to
D of
Buccleuch, etc v Cowan, etc (1866) 5 M 347.
Chalmers v
Stevenson v
Pontefex & Wood (1887) 15 R 125.
Kincaid
Smith v Cameron (1900) 2 F 1179.
Mackay v
Greenhill (1858) 20 D 1251.
Fleming v
Gemmill (1908) SC 340.
Sedleigh-Denfield
v O'Callaghan (1940) AC 880.
Gourock
Ropework Co Ltd v Greenock Corporation (1966) SLT 125.
RHB
Bakeries v Strathclyde Regional Council (1985) SC (HL) 17.
Noble's
Trustees v Economic Forestry (
Kennedy v
Glenbelle Ltd (1996) SLT 1186.
Earl of
Kintore v Pirie & Sons Ltd (1906) 8 F 1058.
Hugh Blackwood Farms Ltd v Motherwell District Council,
unreported, Opinion of Lord Prosser 28 July 1988.
G B & A M
Hampden Park Ltd v Frank Dow & Others,
unreported, Opinion of Lord Drummond Young,
G A Estates Ltd v Caviapen Trustees Ltd (1993) SLT
662.
Cottrill v
Barony Parochial Board v Cadder Parochial Board (1883) 10
R 510.
Church Commissioners for England v Abbey National plc (1994) SLT 959.
Grosvenor Developments (