Devon Angling Association v Scottish Water
Jurisdiction | Scotland |
Judge | Sheriff Principal IR Abercrombie,Sheriff NC Stewart,Sheriff W Holligan |
Judgment Date | 27 March 2018 |
Court | Sheriff Appeal Court |
Docket Number | No 7 |
Date | 27 March 2018 |
[2018] SAC (Civ) 7
Sheriff Principal IR Abercrombie QC, Sheriff NC Stewart QC and Sheriff W Holligan
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Title and interest — Title to sue — Leases of rivers held by angling association — Discharge of sulphuric acid into river killing large quantities of fish — Claim for reparation by angling association for patrimonial loss and loss of amenity — Whether title to sue — Salmon and Freshwater Fisheries (Scotland) (Consolidation) Act 2003 (asp 15), sec 66
Devon Angling Association and the officers thereof as representing the association raised an action for reparation in the sheriffdom of Tayside, Central and Fife at Alloa against Scottish Water. Following a debate, the sheriff (LAR Smith) sustained the plea of the defender of no title to sue. The pursuers appealed against that decision to the Sheriff Appeal Court.
Section 66(1) of the Salmon and Freshwater Fisheries (Scotland) (Consolidation) Act 2003 (asp 15) (‘the 2003 Act’) provides that any contract entered into in writing for a consideration and for a period of not less than one year whereby an owner of land to which a right to fishing for freshwater fish in any inland waters pertains or the occupier of such a right authorises another person to so fish shall be deemed to be a lease to which the Leases Act 1449 (c 6) applies, and the right of fishing so authorised shall, for the purposes of succession to that right, be deemed to be heritable property. Section 69(2) provides that references to an occupier of a right of fishing for freshwater fish are references to a person who is in possession of that right as a tenant under a lease of land or under a contract which by virtue of sec 66 is deemed to be a lease.
The pursuers were an angling association whose objects were to sustain and protect fishing in the River Devon and its tributaries. They were party to contracts conferring upon them the exclusive right of all fishings on parts of that river, running from year to year, for a payment of £20 per annum. Sulphuric acid was discharged from a tank on the defender's property. The pursuers raised an action in the sheriff court alleging that the sulphuric acid killed large quantities of fish and seeking reparation therefor based on negligence and nuisance. The defender tabled a plea of no title to sue which, following debate, was sustained by the sheriff. The pursuers appealed against that decision to the Sheriff Appeal Court.
Counsel for the pursuers submitted that they had a lease giving them a possessory title similar to that of the owner, thereby entitling them to sue.
Counsel for the defender submitted that the pursuers did not have a lease, nor a right of ownership or possession similar to that of an owner, and therefore had no title to sue.
Held that the substantial rights the leases conferred upon the pursuers exclusively (including the right to interdict and prosecute third parties) together with the effect of sec 66 of the 2003 Act amounted to a right of possession similar to that of an owner so that the pursuers had title to sue (para. 27); and appeal allowed.
The cause came before the Sheriff Appeal Court, comprising the Sheriff Principal IR Abercrombie QC, Sheriff NC Stewart QC and Sheriff W Holligan, for a hearing, on 15 November 2016.
At advising, on 27 March 2018, the opinion of the Court was delivered by Sheriff W Holligan—
Opinion of the Court— [1] This appeal concerns a claim for reparation. The pursuers and appellants are an angling association. They are an unincorporated body whose objects are to sustain and protect fishing in the River Devon and its tributaries along a particular stretch of the water. The defenders and respondents are Scottish Water, a body incorporated in terms of the Water Industry (Scotland) Act 2002 (asp 3). We will refer to the parties as ‘the association’ and Scottish Water respectively.
[2] The circumstances giving rise to the present claim are set out in the closed record. For the purposes of this opinion the material facts are not greatly in dispute. It is a matter of agreement that the association bears to be the tenant of three leases executed in 1982, 1988 and 2013 respectively (although we recognise there is a dispute as to whether the association are lessees and the documents leases, for convenience we shall refer to them as ‘the leases’). There is little material difference in the terms and conditions of each of the leases. They are short documents. We set out the terms of one of the leases in detail later in this opinion. The association avers that the River Devon is a popular destination for anglers for salmon, sea trout and native brown trout. The association has been in existence for some time and takes an active interest in ensuring adequate stocking of the river.
[3] At some point between 3 and 4 July 2011, approximately 12,000 litres of 96 per cent concentrated sulphuric acid were discharged from a tank situated on the property of Scottish Water at the Glendevon Water Treatment Works. Put very shortly, the association avers that the sulphuric acid entered into the River Devon killing large quantities of fish, including brown trout. The association avers that the discharge of the sulphuric acid was caused by the fault of Scottish Water. It seeks reparation therefor. The association founds its claim in both negligence and nuisance. The loss condescended upon is patrimonial (the cost of certain reports) and loss of amenity (the alleged effect of the pollution on the value of the members' subscriptions).
[4] The association raised an action against Scottish Water at Alloa Sheriff Court. Scottish Water tabled a plea of no title to sue. The matter came before the sheriff in Alloa. Having heard the parties in debate the sheriff sustained the plea of Scottish Water of no title to sue and dismissed the action. As the argument before us is very similar to that presented to the sheriff, we need not refer in detail to the sheriff's judgment. Counsel lodged detailed notes of arguments which we summarise as follows.
[5] Counsel for the association submitted that the association does have title to sue. The parties agree the following proposition: that where by delict a person injures the subjects of a lease, the tenant, generally, has title to sue him for reparation. As sec 66 of the Salmon and Freshwater Fisheries (Scotland) (Consolidation) Act 2003 (asp 15) (‘the 2003 Act’) provides that contracts such as the present shall be deemed to be leases it follows that the association has title to sue for damage caused by Scottish Water. It is not disputed that the terms of each contract meet the criteria in sec 66. It is also a matter of agreement that sec 66 applies the Leases Act 1449 (c 6) (‘the 1449 Act’) to the contract. The effect of sec 66 of the 2003 Act is not only to deem the 1449 Act to apply to such a contract; it is also to deem the contract to be a lease. Reference was made to sec 69(2) of the 2003 Act. The 1449 Act can only apply to a...
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