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

 

 

 

 

EDINBURGH, 22 December 2006

 

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, Midlothian.

 

2. The first defender is William Duncan MacEwan, Farmer, residing at Pentland Mains Farm, Loanhead, Midlothian.

 

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 Scotland.

 

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 16 October 1994 Mr Newbould wrote to Michael Shiel, Director of Planning with Midlothian District Council, and pointed out that the pool of water which had formed on the infill site was a source of danger to children.

 

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 21 September 1995, Shiel made a report to the planning authority, in which he described the condition of the land fill site and recommended that enforcement action be taken against the proprietor to restore the site to agricultural use. He indicated that it was likely that some further material would need to be imported in order to create a land form with suitable slopes and adequate drainage for agricultural use.

 

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 11 October 1995, the planning authority served an enforcement notice on W R MacEwan, which required him to complete the infilling of the site so that it could be restored to agricultural use. The notice was effective from 10 November 1995. W R MacEwan died on 14 November 1995, leaving the farm to the defender, who thereby became the person responsible for complying with the notice.

 

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 23 May 1997, the defender obtained planning permission for further land filling to the south of the first landfill site.

 

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 1 December 1998, SAC wrote to Shiel and indicated that Ross and the defender were taking steps to improve the drainage on the landfill site.

 

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 2 May 2000 Mr Newbould wrote to Midlothian Council about this incident and demanded that action be taken.

 

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 6 April 2001.

 

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 28 March 2002.

 

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 high point on the road towards the west. The source of this water is partly the landfill site and partly land lying beyond it, to the south and west.

 

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 Seafield Moor Road). In 1995, Hartfield Homes Limited, a company wholly owned by Mr and Mrs Newbould, acquired the stable field.

 

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 (5/5/8 of process), which showed that lower levels had been approved.

 

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 (6/2/5 photos i and j). Mrs Newbould went on to say that since 2004 the bund has never burst nor water come down the embankment.

 

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.

 

5/6/8 is an invoice from Hartfield to the pursuers for £1,298.37 for digging the ditch along the north side of the access road to connect with the pump. The invoice is addressed to the pursuers. Mrs Newbould explained that they had not actually paid it but that it was debited against them in the directors' loan accounts.

 

5/6/9 is a note of expenses personally incurred by the pursuers, not supported by vouchers. It is dated 9 August 2005. It relates to the cost of a tractor and pump used for pumping water and for repairs to the pump. The cost of the tractor is stated as £5,000. Mrs Newbould said that the pursuers had the tractor for about 2 years before it was assigned to pumping.

 

5/6/11 is a calculation made by Mrs Newbould of the cost of diesel purchased by Hartfield Homes for tractor pumping as recorded from 2001 to 2005. The cost of running the tractor varies from £2.25 per hour in 2001 to £2.75 per hour in 2005, bringing out a sub-total of £15,501.12. In addition, there are repairs to the tractor bringing out a final total of £17,390.26. This claim is backed up in part by diary entries from January 2004 to July 2005 in 5/7/1.

 

Items 5/8/2 to 5/8/13 of process are invoices to Hartfield Homes Limited relating to the pumping operation.

 

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 6/5/2 of process. The area around the boundary had black peaty soil.

 

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 (6/2/2) and being asked for his reaction, he said "that would have been panic stations right away".

 

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 26 November 1998, Shiel wrote to the first defender about continuing flood problems on the pursuers' property. The first defender had put in a new access road with a ditch on its inner side but it was not working and the access road was becoming flooded. The first defender had drainage plans (5/3/14) which envisaged a drain from the land fill access road through the land fill site for several hundred metres to the south. The first defender had consulted Mr Caunt from Scottish Agricultural College (SAC) who became involved in dealing with the problem. Mr Newbould wrote to planning about the bund bursting during exceptional weather in April 2000 (5/4/5). In March 2001, Shiel reported that he was not satisfied with the progress of the restoration of the site to agricultural use (5/5/26).

 

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, Perth. He graduated from Aberdeen University in 1977 with a First Class BSc in Engineering Science. He has been a member of professional institutes since 1985. He worked for major construction companies involved in large building projects before joining his present firm as a senior engineer in 1998. His work there concerns infrastructure, including roads, drainage and sewers.

 

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 10 November 1995, on the death of his father. MacEwan recalled the stable field from Kermack's day. Kermack used to cultivate the field but there was a strip along the Pentland Mains boundary about 30 yards wide and tapering to the west beyond what is now the spur road which he did not plough. It was self-evident that Kermack could not plough that part because it was always waterlogged.

 

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 14 November 1995). The first flooding of the stable field was shortly after his funeral. Ross may have been on site, before the enforcement notice was served, spreading some material and clearing gorse. He brought new material onto site after the notice was served. The amount he brought was small compared to what Wimpey had brought. He then contoured the site.

 

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 6 April 2001 (5/5/27 of process) and noted the opinion stated therein that the Pentland House access road, although permeable, hindered the movement of water. The first defender thought that this road must be a factor in the flooding problem.

 

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 W Dickson

Mr Dickson is an Environmental Consultant with SAC (Scottish Agricultural College), Bush Estate, Penicuik. He graduated BSc (Second Class Honours) in Civil Engineering at Glasgow University in 1973. He has been employed by the College for 30 years, much of that time looking at the effects of soil compaction, the physical properties of soil, water flow and drainage. Through the College, he has acted as part of a team of consultants undertaking soil surveys and drainage investigations connected with the laying of pipe lines and roads in agricultural land and open cast mining. His reports in this case represent his views, although measurements may have been taken by colleagues and the draft reports internally reviewed before issue. Dickson explained that the College is a registered charity and that the reports were issued by its commercial arm, known as Heartland Environmental, later SAC Environmental.

 

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 28 March 2002 (6/2/1 of process) commissioned by Midlothian Council, he found a higher level of water on the stable field than in the boundary ditch.

 

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 Littlehampton Building Society). Mr Campbell argued that the company's loss should not be taken into account but I agree with Mr Murphy that, in principle, the loss is truly that of the pursuers. There is however a difficulty about the crave for damages. Very little vouching is produced, estimates for work to be done have been obtained from the pursuers' own company and no-one else and a claim relating to pumping of water includes the full capital cost of a tractor (£5,000) which had been used for another purpose for two years before and for which no depreciation has been allowed. Both counsel suggested that I take a broad axe to the question of damages and, on that basis, I assess that I would have set damages at £25,000, had the pursuers been successful.

 

 

Cases referred to

D of Buccleuch, etc v Cowan, etc (1866) 5 M 347.

Chalmers v Dixon (1876) 3 R 461.

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 (Scotland) Ltd (1988) SLT 662.

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 Anderson v White (2000) SLT 37.

Hampden Park Ltd v Frank Dow & Others, unreported, Opinion of Lord Drummond Young, 13 July 2001.

G A Estates Ltd v Caviapen Trustees Ltd (1993) SLT 662.

Cottrill v Steyning & Littlehampton Building Society (1966) IWLR 753.

Barony Parochial Board v Cadder Parochial Board (1883) 10 R 510.

Church Commissioners for England v Abbey National plc (1994) SLT 959.

Grosvenor Developments (Scotland) plc v Argyll Stores (1987) SLT 738.