Webster v The Lord Advocate
| Jurisdiction | Scotland |
| Judgment Date | 07 February 1985 |
| Date | 07 February 1985 |
| Docket Number | No. 20. |
| Court | Court of Session (Inner House - Second Division) |
Lord Stott.
SECOND DIVISION.
Nuisance—Noise—Preparations for, and performance of, military tattoo by licencees—Whether nuisance in relation to neighbouring residents—Whether owner had permitted nuisance—Interdict.
Interdict—Competency—Nuisance—Interdict of defenders from making preparations for military tattoo in such a manner as by reason of noise to cause nuisance—Whether interdict insufficiently specific—Whether interdict should follow terms of declarator of nuisance—Whether interdict to be refused in the public interest.
Prescription—Nuisance—Annual performance of military tattoo for thirty years before challenge—Whether right to challenge prescribed—Prescription and Limitation (Scotland) Act 1973 (cap. 52), sec. 8.1
The owner and occupier of a top floor flat overlooking the esplanade at Edinburgh Castle raised an action against the Lord Advocate as representing the Secretary of State for Scotland and the Tattoo Policy Committee of the Edinburgh Military Tattoo. She concluded for declarator that the second defenders had made preparation for, and staged performances of, the Tattoo which by reason of noise caused a nuisance to her and for interdict of them from making preparations and staging performances in such manner. She also concluded for declarator that the Secretary of State had permitted the second defenders to commit the nuisance. She averred that the nuisance comprised the erection of stands for spectators, the rehearsals and the performances themselves. Both defenders averred that the public interest in the construction of the Tattoo outweighted any interest which the pursuer had. They also pleaded that the pursuer's right to raise proceedings as owner of her flat had prescribed in terms of sec. 8 of the Prescription and Limitation (Scotland) Act 1973. The first defender also averred that declarator should not be pronounced against the Secretary of State as he had no responsibility for the erection of the stands. The action came to proof before the Lord Ordinary (Stott). It was established that the Tattoo had taken place since 1950; that it was a
valuable asset for Edinburgh in terms of publicity and commerce and that it was desirable in the public interest that it should be allowed to continue. There was also no suitable alternative site. The erection of the stands went on for at least twelve hours each day from early June until the Tattoo in August. The system which had been introduced in 1975 involved bolting lengths of tubular steel. The noise from this work occasioned serious interference with her comfort even taking into account the general disturbance to the neighbourhood from visitors to the castle. The rehearsals took place in the early morning and late evening but lasted only for four days. The Tattoo itself lasted for 18 days and the level of noise was louder than that caused by the preparations. The Lord Ordinary held that the disturbance to the pursuer's home life caused by the rehearsals and the performances was not of a degree to constitute nuisance but that the disturbance caused by the erection of the metal grandstands did constitute a nuisance. He further held that the public interest could not override the pursuer's right to interdict but might only entitle the court to suspend the operation of the interdict. The defenders might have succeeded in their pleas of prescription in respect of the rehearsals and the performance of the Tattoo but as the new system of construction had only been introduced in 1975 their pleas did not succeed in relation to the preparations. The Lord Ordinary held further that as the Secretary of State remained in control of the esplanade, and the second defenders were merely licencees, declarator should be pronounced against him. In relation to the terms of the interdict sought the second defenders contended that these were insufficiently precise so as to leave the defenders in no reasonable doubt as to what they were forbidden to do. His Lordship held that the interdict would not in practice give rise to problems, but that its operation would be suspended for six months, particularly as there was evidence that alternative methods of accommodating spectators might be devised.The second defenders reclaimed on the grounds that the terms of the interdict were not sufficiently precise and that the Lord Ordinary erred in holding that he had no discretion in the circumstances to refuse interdict. At the hearing of the reclaiming motion it was intimated that the second ground would merely be stated so as to keep the argument open. In the course of the motion the pursuer offered to amend the interdict sought by substituting the words "construction noise" for the word "noise". The second defenders declined to accept the interdict in the amended terms.
Held (1) that the terms of the interdict did not have to be governed by the terms of the declarator; the terms of the interdict should be governed by the illegal act and the method of preventing its recurrence and little assistance could be obtained from decisions in other cases.
(2) That it was clear that the only noise which the Lord Ordinary held to constitute a nuisance was the clanging of metal on metal and the interdict should be restricted to that activity by the substitution of the words "metallic construction noise" for the word "noise"; and reclaiming motion allowed.
Observed, per L.J.-C. Wheatley, that there was nothing to prevent an appeal court from restricting an interdict.
Elizabeth Lesley Webster raised an action against the Right Honourable The Lord Mackay of Clashfern, Q.C., Her Majesty's Advocate, as representing the Secretary of State for Scotland and the Tattoo Policy Committee and certain named individuals as the members and joint secretaries of the committee.
The pursuer concluded inter alia: "1. For declarator that annually since July 1977 the second defenders have made preparations for and have staged performances of the Edinburgh Military Tattoo on the esplanade at Edinburgh Castle in such a manner as by reason of noise to cause a nuisance to the pursuer as proprietor and occupier of 14 Ramsay Garden, Edinburgh.
2. For declarator that the Secretary of State for Scotland who is responsible for the care and management of the Esplanade and who is represented by the first defender has permitted the second defenders to create and to continue said nuisance.
3. For interdict against the second defenders and all others acting on their behalf or with their authority from making preparations for and staging performances of the Edinburgh Military Tattoo or other similar event on the esplanade at Edinburgh Castle in such manner as by reason of noise to cause a nuisance to the pursuer as proprietor and occupier of 14 Ramsay Garden, Edinburgh."
The parties averred inter alia: "Cond. 5. A Mero space frame system is used as the framework for the new stands. This system involves locking together lengths of tubular steel. About three to five lengths of tubular steel are assembled at any one time by workers on the esplanade. These assembled lengths are then hoisted up by crane until level with a squad of men sitting astride that part of the framework already erected. This squad locks the assembled lengths into that partially completed framework. Once the framework of each stand is fully constructed, timber decking and seats are added. By nature of the process the work is slow, noisy and labour intensive. It involves the use of a large noisy crane, a considerable amount of loud hammering and the dropping of pieces of tubular steel from a height on to hard surface. The averments in answer are denied in so far as not coinciding herewith. It is explained and averred that the heavy crane is in use for very considerably more than a week during each of the periods of erection and dismantling. On occasions, particularly during the early stages of erection and the later stages of dismantling, two or even three large cranes operate on the site. In 1980, the first large crane began operations on 2nd June. It was on site continuously thereafter until 16th July. A second large crane was also working on site between 7th and 13th June and on 13th July. During dismantling, one crane was in use from 17th September to 10th October inclusive, assisted by a second crane for...
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