Esso Petroleum Company Limited Against (first) The Scottish Ministers, (second) Brenntag Inorganic Checmicals Limited, (third) Interlink M74jv; (fourth) Galliford Try Infrastructure Limited; (fifth) Balfour Beatty Civil Engineering Limited, (sixth) Morgan Sindall (infrastructure) Plc And (seventh) Sir Robert Mcalpine Limited
| Jurisdiction | Scotland |
| Judge | Lord Doherty |
| Neutral Citation | [2015] CSOH 21 |
| Published date | 17 February 2015 |
| Court | Court of Session |
| Docket Number | CA103/14 |
| Date | 17 February 2015 |
OUTER HOUSE, COURT OF SESSION
[2015] CSOH 21
CA103/14
OPINION OF LORD DOHERTY
In the cause
(FIRST) ESSO PETROLEUM COMPANY LIMITED
(SECOND) ROC UK LIMITED
Pursuers;
against
(FIRST) THE SCOTTISH MINISTERS; (SECOND) BRENNTAG INORGANIC CHEMICALS LIMITED; (THIRD) INTERLINK M74 JV; (FOURTH) GALLIFORD TRY INFRASTRUCTURE LIMITED; (FIFTH) BALFOUR BEATTY CIVIL ENGINEERING LIMITED; (SIXTH) MORGAN SINDALL (INFRASTRUCTURE) PLC and (SEVENTH) SIR ROBERT MCALPINE LIMITED
Defenders:
Pursuers: Reid QC, Burnet; Maclay Murray & Spens
First Defenders: Sheldon QC; Anderson Strathern LLP
Second Defenders: Barne; DLA Piper
Third to Seventh Defenders: Jones, solicitor advocate; bto Solicitors
17 February 2015
Introduction
[1] The first pursuer is the heritable proprietor of Esso West Street Service Station, 156 West Street, Glasgow (“the Site”). Up until about 2013 the Site had been operated as a petrol filling station by the second pursuer. In about 2004 the first defenders acquired land to the south-east of Paterson Street, Glasgow (“the M74 land”) from the second defenders for the purposes of the M74 Completion project (which involved construction of approximately five miles of motorway between Fullarton Road and west of the Kingston Bridge). The Site and the M74 land are adjacent. The third defenders, which are a joint venture comprising the fourth to seventh defenders, carried out the construction of the project for the first defenders. The first pursuer claims that as a result of those operations hazardous chemicals present on the M74 land were released and continue to be released into the groundwater system, and that contamination of the Site has occurred and continues to occur.
[2] The first pursuer seeks interdict of the first defenders from permitting, facilitating or acquiescing in any further escape of contaminants from the M74 land on to the Site; decree of specific implement ordaining the first defenders to prevent any further escape of contaminants from the M74 land on to the Site; and decree ordaining the defenders or such one or other of them as to the court shall seem proper to carry out and complete works to remediate the Site and prevent recurrence of contamination, failing which damages. It also seeks payment of further sums by the defenders by way of damages. It avers that the contamination of the Site has been caused by nuisance et separatim fault on the part of the first, second, and third to seventh defenders.
[3] The issue before me for determination at this debate on the commercial roll is whether the first pursuer has pled a relevant case for inquiry against either, or both, of the first and second defenders. Those defenders maintain that the action so far as directed against each of them should be dismissed because the first pursuer’s pleadings disclose no relevant case of nuisance or fault, and because the averments of loss are irrelevant or hopelessly lacking in specification. At the debate the first defenders also raised for the first time an issue as to the competency of interdict or specific implement being granted against them in view of the prohibition contained in section 21(1)(a) of the Crown Proceedings Act 1947.
[4] Prior to the debate the pursuers had offered a proof before answer. At the outset of the debate Mr Jones accepted that the case against the third to seventh defenders should go to a proof before answer. He was granted leave to withdraw from the debate and took no further part. Mr Sheldon and Mr Barne insisted on their preliminary pleas to the relevancy of the pursuers’ averments. During the course of the debate Mr Reid conceded that the second pursuer’s averments were irrelevant and that the action in so far as at its instance would require to be abandoned. He also indicated that the fourth conclusion was not insisted upon; and he accepted that the averments in condescendence 17 were irrelevant.
The pleadings
[5] The first pursuer avers that the M74 land was formerly used by the second defender for the filling and blending of bulk liquid chemicals and the distribution and storage of chemicals including chlorinated hydrocarbons and other manufactured chemicals, and in particular tetrachloroethene and trichloroethene; that 1, 2 dichloroethene and vinyl chloride are degradation products of both tetrachloroethane and trichloroethene; and that the storage of such chemicals is not a natural use of land. It avers (condescendence 4):
“Their deposit in the past on or within land created a material risk that if not effectively removed, or stored and confined the chemicals would, on being disturbed, escape into the groundwater and contaminate neighbouring property such as the Site as in fact occurred. The second defenders knew or ought to have known that the unregulated escape of said chemicals would cause a risk to human health and a risk to the use of any land on which said chemicals came to be.”
[6] The first pursuer also avers that the first defenders instructed the M74 Completion works to be undertaken on the M74 land; that as part of those works the buildings on the site were demolished and the floor slab of the buildings, the external hard standing and the drainage on the site were removed; that as a result of the excavation works dangerous chemicals were, and continue to be, released from the M74 land into groundwater which flowed, and continues to flow, on to the Site thereby contaminating it. It avers that the first defenders have statutory responsibility for the management and maintenance of the M74 Completion of which the M74 land forms part; and that having regard to the terms of the missives of sale between the second defender and the first pursuer, and to the terms of the contract to design and build the M74 Completion entered into between Glasgow City Council on behalf of the first defenders and the third defender in March 2008, the defenders were aware or ought to have been aware of the real risk of the escape of hazardous substances from the M74 land and the contamination of land adjacent to it in the course of or as a consequence of the proposed construction. It avers (condescendence 5) that the first and third defenders knew or ought to have known that the second defenders had in the course of their business used the M74 land for the purposes of processing and storage of chemicals which could cause potential risks to human health and to the use of the land on to which the chemicals might escape. In condescendence 6 it avers that investigations on the site in 2008 identified the presence of chlorinated hydrocarbons of potential concern to human health including tetrachloroethene, trichloroethene, 1, 2 dichloroethene and vinyl chloride; that those contaminants were not produced or present as a result of the use of the Site; that they are soluble in water and can pollute large amounts of groundwater; that they require remedial action to prevent pollution and risk to human health; that trichloroethene continues to enter the Site from the M74 land; that the level of contaminant (sic) of concern remain in excess of the Site Specific Assessment Criteria recommended levels; and that the treatment system installed on or around the south of the M74 land has not resolved the situation.
[7] Condescendence 7 to 11 state:
“Cond. 7.… The groundwater flow of contaminants is northwards from the M74 land on to the Site. The contaminants have flowed and are continuing to flow from the M74 land on to the Site…
Cond. 8 In or about November 2008 the third defenders considered remedial options for the section of the M74 in the vicinity of West Street. They were aware of the presence of contaminants on the M74 land. The third defenders proposed remedial operations including the installation of bentonite walls to prevent the spread of contaminants… No bentonite wall was constructed on the southern boundary of the Site. The existence of a bentonite wall on the southern boundary would have minimized the possibility of migration of contamination on to the Site. None of the defenders consulted the Pursuers before deciding not to install a bentonite wall on the southern boundary of the Site… The “funnel and gate” system installed does not control the migration and contamination from the M74 Land northwards towards the Site…
Cond. 9 As a result of the works for the construction of the M74 Completion, in particular the effect upon and contamination of the groundwater flow, the first pursuer’s property at the Site is now subject to contamination which has migrated or escaped from the M74 Land. The said contamination on the site requires to be remediated by the carrying out of works which the pursuer estimates will take a period of six months…Separatim in any event the presence of contamination issues on the Site reduce its value. A site with contamination issues is less attractive to the market. The price paid by any potential purchaser is significantly less as a result of the contamination issues…
Cond. 10 As proprietors and occupiers of the M74 Land the first defenders owed a duty to the pursuers as neighbouring proprietor not to carry out any operations on the M74 Land in a way that was likely to cause loss and damage to the pursuers’ property and interests in the Site. Any reasonable scheme of works would have been designed to and would have minimised disturbance of areas of contamination and minimised disturbance of underlying groundwater. Any reasonable scheme would have successfully controlled the risk of adverse impact to humans, water and the wider environment including adjacent land such as the site both during and after construction operations. The scheme of works authorised by the first defenders did not do so. The carrying out of the excavation and other works for the M74 Completion have caused contaminants to escape on to the Site in particular by affecting, interfering with, and allowing the said contaminants to enter the groundwater flow. The first defenders...
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