Noise nuisance

Fundamental principles of the common law action of nuisance have recently been confirmed by the Scottish Court of Session in a decision which clearly shows the powerful nature of the remedy.

Webster v The Lord Advocate and Others (judgment of Lord Stott, 24 June) concerned the annual Edinburgh Military Tattoo. Miss Webster, who occupied a flat adjacent to the Castle Esplanade where the Tattoo was held, complained of the noise on three counts: the erection of spectator stands over a period of six weeks prior to the Tattoo, the rehearsals for the Tattoo, and the performances themselves.

The court held that the strength and quality of sounds coming from the rehearsals and performance were not such as to amount to a nuisance. But the noise from the erection of spectator stands, consisting of loud banging on steel for some 12 hours a day, was held to cause a serious disturbance to the comfort of Miss Webster, and the court rejected any argument that she had an obligation to take remedial measures such as installing double-glazing or keeping her windows closed.

Lord Stott went on to dismiss a number of legal submissions made by the defendants, the Tattoo Policy Committee and the Lord Advocate (representing the Secretary of State for Scotland, the occupier of the Esplanade). The fact that she "came to the nuisance" in that she had moved to the flat only in 1977 was not relevant to her claim. The defence of prescription (20 years' continuous use) might have been applicable to the Tattoo itself, which had been held annually for more than 30 years, but the particular method of stand construction which gave rise to the nuisance had been adopted only since 1975, and prescription was therefore not available.

The judgment, however, is perhaps most telling in its handling of the conflict between the interest of Miss Webster and what Lord Stott acknowledged to be the great public interest in the Tattoo. It was accepted that no alternative site existed, but Lord Stott kept to traditional nuisance principles in holding that the court's discretion to refuse an injunction (or interdict in Scottish law) was strictly limited.

Although Lord Denning had suggested in a nuisance case in 1977 that courts should refuse injunctions in nuisance cases where the public interest in the activity complained of outweighed private interests - a flexible approach favoured by some pollution economists - this line was firmly rejected by the court. Otherwise, "a private citizen could seldom, if ever, resist any intrusion upon his rights through a development beneficial to the community, and undertaken by a large-scale employer or public authority."

The interdict was therefore granted in relation to the preparations to the Tattoo, though suspended for six months to give the organisers time to seek alternative arrangements for spectator accommodation which did not cause a nuisance. It is understood that an appeal has been launched, but is unlikely to be held before the end of the year.

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