Nuisance And The Angel's Share: Remedying Neighbour Disputes

• Published date: 14 May 2020
• Author: Mr Stephanie Hepburn
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation
• Law Firm: Shepherd and Wedderburn LLP

A recent case in which the enjoyment of property has been allegedly disturbed by actions taking place on a neighbouring property may pique the interest of whisky distillers. It is also a helpful reminder of when the common law of nuisance can be used as a remedy in neighbour disputes.

Mr and Mrs Chalmers v Diageo Scotland Limited

The case of Mr and Mrs Chalmers v Diageo Scotland Limited [2018] CSOH 36; [2019] SLT 1184 concerned the "angel's share" – the evaporated ethanol vapour from whisky casks – which it was claimed caused a black fungus (baudoinia compniacensis) to grow on Mr and Mrs Chalmers' house and garden furniture. The couple claimed this constituted a legal nuisance, for which £40,000 was sought from Diageo, the operator of the neighbouring whisky aging facility in Bonnybridge, Stirlingshire.

Mr and Mrs Chalmers maintained that the value of their property had been reduced by about 5-10% because of the effects of the fungus on their house. They also claimed for particular types of inconvenience and loss of amenity, such as the need to spend time and effort cleaning the external walls of their house, as well as restrictions on the types of materials that they can use in their garden and on the choice of paintwork for external items.

Nuisance - the legal test

The owner or occupier of a property must not use their land in such a way so as to disturb their neighbour's enjoyment of their property or cause damage to their neighbour's land. To constitute a legal nuisance, the use must amount to offensive conduct, the effects of which are plus quam tolerabile – meaning the affected person must have suffered more than they could reasonably be expected to tolerate. It is not enough to merely cause discomfort. A legal nuisance includes damage to property in addition to serious disturbance and substantial discomfort.

Where damages are sought, fault must be established, though in the context of granting interdict (which, notably, Mr and Mrs Chalmers did not seek), liability for nuisance is strict and there is no need to prove fault.

Facts and circumstances

A number of facts and circumstances will be taken into account in determining whether conduct amounts to a nuisance and the plus quam tolerabile test is met: the nature of the harm; the impact and extent of the nuisance; the character of the locality of the nuisance; the time the nuisance is said to take place; the frequency and duration of the nuisance; any conventions that may mean the nuisance is...