Posted by: @jamespa

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I'm still not sure how that proves that MCS installers provide false certificates'.

The installer provided an MCS certificate for installation of the ASHP at my neighbour's driveway, while the ASHP had already been installed on the boundary of the house with the Parkland. The MCS certificate is false even for an ASHP at the driveway. 

Posted by: @jamespa

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Its actually much more difficult to get permission to install an ASHP

I don't think it is the case in Scotland because unlike England and Wales which have the 1meter/3meters distance to boundary, in Scotland there is no minimum policy for installing ASHPs.  

@persephone 

I am sure that you are aware that Scottish Planning Policy has a presumption in favour of any development that contributes to sustainable development including supporting climate change mitigation and adaptation.  All legal principles in Scotland favour a presumption of allowing any action that is not expressly constrained by statute or common law. Planning decisions are legally binding, and place Council planning authorities under an obligation not act contrary to that principle.

@abernyte Absolutely. This means that, at least in Scotland, MCS is nothing but a fake certificate for developers to get their hands on the Funds or to support any new development. My neighbour's development (demolishing the bungalow and building a two-storey house in its place) was approved because of the ASHP and solar panels. They did not install the solar panels, and the Council states it is their choice. They installed the ASHP at the oddest location ever (on the boundary of their house with a public path), and the Council eventually approved it by disregarding all planning regulations.

While not knowing the specifics of the application fully, I would question that it was approved solely because of the ASHP and solar panels and I am unaware of any legal  boundary restriction on the siting of a ASHP in Scotland. They do seem to have moved the ASHP to be as far as possible from your property, how ever badly that has turned out. 

I appreciate that this application is not to your liking and I have seen many planning applications granted that I disagree with or find the grant perverse but I do appreciate that planning authorities are not entirely masters of this space. They are required to only deny applications where they are on grounds of some legal certainty and I would hesitate before conflating this duty with incompetence or disinterest. 

There is much to dislike about MCS and you will find many here that would agree, but they are in place by statute and until that changes we must work within that constraint. 

Posted by: @abernyte

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There is much to dislike about MCS and you will find many here that would agree, but they are in place by statute and until that changes we must work within that constraint. 

Well I think at least in Scotland, MCS is nothing but a fake certificate for developers to get their hands on the Funds or to support their new developments. 

Posted by: @persephone

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Posted by: @jamespa

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Whats the nature of the sound that you hear and when does it occur (how often, when  - time of day, year etc)?

Nature of the sound: buzzing and pulsating humming noise. I do not hear them when at work (office - classroom). My husband and I used to leave our bedroom window slightly ajar all year long, but for the past three years we had to keep the window closed even in summer time. 

How often: it depends, but mostly as following

all year >> 4-5 am (I assume it provides for the morning shower of my neighbour as I can see their bathroom window. They use it around 7am) +  after 6 pm

Cold season/nights >> around 9-10-11-12 night + around 3 am 

OK so thats DHW in summer and domestic heating plus DHW in winter. 

Surely in winter when its cold you close the windows (if not why not?).  When the windows are closed can you still hear it.  If so you must have particularly sensitive hearing assuming that the consultants report is true or thereabouts.  How about adding thicker curtains or s a tiny amount of white background noise, given that the level of noise from the ASHP is (according to the consultants report) so low.

As to summer, perhaps there would be a better time (as far as you are concerned) for them to heat the DHW and perhaps you could speak to them about that?

Basically I'm saying. could you take action to mitigate at least in part.  You cannot reasonably expect the interior of your house to be completely free of external noises, certainly mine isn't and I live in an area which my local authority describes as both 'rural' and 'quiet'.

Posted by: @persephone

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I don't say all installers do a bad job. I say if they want to, they can breach MCS with impunity because no one is responsible to enforce it. I am sure my neighbour's installation is to 'their satisfaction', but it is not compliant with MCS, and the noise has ruined my life.

Im not sure how the installation is not compliant with those aspects of MCS which apply given that it has express consent.  But never mind, the real issue is this...

Posted by: @persephone

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... and the noise has ruined my life.

Im obviously sorry to hear that, and doubtless others are too.  At the same time there is no way that anything I or anyone else can say about the facts (and conflation of unconnected matters) which is going to convince you if that is what you think.

however since it has 'ruined your life' why cant you convince your Local Authority that your neighbours are causing nuisance/why are you not prepared to go to court and make a claim of nuisance.  the test is that the actions of your neighbours have ' unreasonably and substantially interfere with the use or enjoyment of your land or injured your health' (or whatever the equivalent is in Scottish Law, its almost certain to be similar as this stuff goes back a long way).

Which part have you not so far been able to justify, is it the requirement to be 'substantial' or is it the requirement to be 'unreasonable'?  I would recommend you ask yourself that question and feel free to test your thoughts here.

@persephone I don’t think I’ve seen you describe the nature of the noise you’re experiencing in your home from the neighbour’s heat pump. Is it purely from the fan? Looking at the photo you provided it’s unlikely to be reverberations. Please advise. Also, what is the brand of the heat pump?

Posted by: @jamespa

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the test is that the actions of your neighbours have ' unreasonably and substantially interfere with the use or enjoyment of your land or injured your health' (or whatever the equivalent is in Scottish Law, its almost certain to be similar as this stuff goes back a long way).

The test for actionable nuisance in Scottish Law is that the nuisance must emanate from the wrongdoer’s land, and be beplus quam tolerabile (more than is tolerable). What is “tolerable” will depend on the facts and circumstances of each case – including the nature of the locality. If the remedy being sought is only interdict then culpa (negligence) is not required to be proved.

PS Never take legal advice from an internet forum!

I actually checked (some while back) several cases which seemed to confirm the definition (in English law).  However if you can provide a definitive reference that another definition applies in English law, then I would be most grateful.  

I acknowledge that Scottish law can be different.  It seems you are saying that there is no test of reasonableness in Scottish law which is a stark contrast to English law, where the action must, so far as I can establish, be unreasonable.  Following your own advice not to accept legal advice from an internet forum, do you have a reference for this.  Its prima facie a very interesting and significant difference between the two systems.

Nuisance is one of the stark differences between English and Scottish law. 

Lord President Cooper in Watt v Jamieson 1954 SC 56, at 58:
“The critical question is whether what [the pursuer] was exposed to was plus quam tolerabile when due weight has been given to all the surrounding circumstances of the
offensive conduct and its effects.” 

is highly pertinent.

Watt v Jamieson, 1954 SC 56

Is also key,  in that Lord President Cooper established the common principle of "Allowed to do what you want as long as what you want is not unreasonable." 

In that case both litigants were legal professionals who really should have known better than to recourse to law! 🙂