Alan Cameron | Partner

Neighbours from Smell

Two families who raised a damages action against their neighbours after a strong smell began emanating into their properties have had a court’s decision in their favour upheld following an appeal.

The background to this case is that the Defenders instructed contractors to convert their central heating system from oil fire to gas. They instructed the contractors to disconnect, but not decommission the oil tank (which was located in their garden) as part of these works. At the point the oil tank was disconnected, it contained a large volume of oil. Sometime later the Pursuers became aware of a strong smell at their properties. They discovered the smell was kerosene, the type of oil stored in the Defenders’ oil tank. The Pursuers’ land became contaminated with kerosene. At one point, the odour became so intense the Pursuers’ properties were uninhabitable.

The Pursuers’ position was as follows:

  1. The kerosene came from the Defenders’ oil tank;
  2. It was the fault of the Defenders that the kerosene had leaked and contaminated their properties and;
  3. The contamination constituted a legal nuisance to which they were entitled to financial reparation from the Defenders.

The dictionary would define the word “nuisance” as “a person or thing causing inconvenience or annoyance”

The same cannot be said for a “legal nuisance” Although there isn’t an exact legal definition, a good starting point is to consider if the activity complained of is unreasonable (in the eyes of the law). A variety of factors shall be considered in determining if an activity is unreasonable, such as the social utility of the activity, the locality of the property (i.e is this activity usual/common having regard to the location of the property) and the duration and intensity of the activity. This test will almost always come down to the particular facts and circumstances of each case.

The Sheriff in this case determined the contamination was a nuisance.

The Pursuers then had to prove that the contamination was caused by the fault of the Defenders. In this case, the Defenders’ oil tank was in a good condition. There was no defect with the oil tank, the valve, or associated pipework which could have resulted in a leak. As it appeared almost entirely unlikely that the leak was caused by a defect in the oil tank and given that oil does not escape from a tank of its own accord, an inference was made that the oil escaped due to some human intervention on the part of the Defenders.

Following an evidential hearing, the Sheriff determined that the most likely cause of the spill was caused by the brickwork upon which the oil tank sat being disturbed. This altered the position of the oil tank from, being slightly sloping to horizontal, causing oil to spill and contaminate the Pursuers’ properties.

Accordingly, the Sheriff determined the Defenders had a duty to maintain and manage the oil tank on their property. She further determined that the leakage of oil from the tank onto the Pursuers’ properties is evidence that the Defenders had failed in their duty to properly manage and maintain the tank. The Pursuers successfully proved fault on the part of the Defenders.

This decision was appealed. The principal appeal point being the Sheriff had misapplied the law in relation to nuisance (in particular, by inferring fault on the part of the Defenders) Whilst there was some criticism made of her judgment, it was determined that, based on the evidence which had been presented, fault could be inferred on the part of the Defenders and the Sheriff’s decision was upheld.

The Defenders may wish to consider selling whatever oil they have left as the case has been sent back to the Sheriff to determine how much they owe the Pursuers in financial recompense!

Alan Cameron

Alan Cameron

Dispute Resolution Team

“My motto is: ‘First they ignore you, then they ridicule you, then they fight you, and then you win.’”

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