Posted by: @abernyte

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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.”

Posted by: @abernyte

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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." 

Im guessing you have a legal training?

This is all very interesting indeed .  Does the second ruling have the effect of importing into Scottish nuisance law the principle that the action causing the alleged nuisance must be unreasonable, effectively making it similar, albeit not identical, to English law? 

@persephone

I seem to remember seeing a photo (which I can no longer find) of the offending heat pump with what appeared to be a wooden structure to its rear and sides.

I appreciate that you may no longer be on the best of terms with your neighbour, but I wonder if it would be possible for all parties to look at possible ways of fitting noise dampening material to the heat pump side of the wooden structure?

Posted by: @jamespa

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Does the second ruling have the effect of importing into Scottish nuisance law the principle that the action causing the alleged nuisance must be unreasonable, effectively making it similar, albeit not identical, to English law? 

The appearance of unreasonable makes the two systems appear closer than they really are. The test in Scotland remains plus quam tolerabile (more than is tolerable) and in common law this must be argued to have any chance of success. Culpa (negligence) must also be present although its absence in degree is not fatal to the claim if no damages are sought.

While the Scottish Courts will look at the decisions of the higher courts in England they are not readily bound to follow them. It would be unusual to see a Scottish decision depart from Lord President Cooper's dicta.

Interestingly the Scottish government defines noise here in the same way as in England.  Definitely confused now, is this a difference between common law nuisance and statutory nuisance, or something else I wonder?

Aye... I am referring to common law nuisance. There are numerous versions of statutory nuisance many of which have been around since the 18th century which bring a whole layer complexity. For a statutory nuisance to occur there must be a common law nuisance; however not all common law nuisances would amount to a statutory nuisance  NCB v Thorne 1976.

Thanks, final questions, I promise

1. Is plus quam tolerabile by the claimant or by the reasonable man (presumably in Scotland not on the Clapham omnibus!)

2. Taking everything together is the hurdle to clear for a claim of nuisance to succeed in Scotland higher or lower than in England, or about the same?

1. The litigant must convince the court that they have suffered more than they could reasonably be expected to tolerate. It is deliberately non specific to allow for the many factors which may occur. 

2. I have no experience of English law and cannot comment.

@editor I wrote about it a couple of times, but here it is:  

Nature of the sound: buzzing and pulsating humming noise. 

I only hear the noises in my home (not when I am at work, ie, 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. Some days/nights it works for hours consecutively. Sometimes it works less. But it is mostly noticeable and annoying after 8pm. The noise disrupts my sleep mostly around 3am and 5am.

Model of the ASHP: Samsung AE080RXYDEG EU.

Posted by: @jamespa

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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.

I have not been able to justify the nuisance because the current nuisance policies are defined for loud neighbours who play loud music or have dogs who bark at the middle of the night. The nuisance policies has nothing to do with the 'real' noise impact of ASHPs as they totally disregard LFN, tonality, electromagnetic humming noise, etc.  The noise problem of ASHPs is not just the 'loudness' of the noise, but the 'nature' of the noise which is deliberately being ignored by experts and developers. It is also worth mentioning that Environmental Health are supposed to let the complaniee know of the time/days that the recordings happens at the complainant's property. 

Posted by: @persephone

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Posted by: @jamespa

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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.

I have not been able to justify the nuisance because the current nuisance policies are defined for loud neighbours who play loud music or have dogs who bark at the middle of the night. The nuisance policies has nothing to do with the 'real' noise impact of ASHPs as they totally disregard LFN, tonality, electromagnetic humming noise, etc.  The noise problem of ASHPs is not just the 'loudness' of the noise, but the 'nature' of the noise which is deliberately being ignored by experts and developers. It is also worth mentioning that Environmental Health are supposed to let the complaniee know of the time/days that the recordings happens at the complainant's property. 

Common law nuisance, certainly in England, is a very broad concept indeed and by no means limited to music or dogs.    @abernyte has given the common law test in Scotland upthread, it appears that the statutory nuisance test in Scotland is the same as in England ie the harm must be both substantial and unreasonable.  

it appears that, whilst the precise requirements differ, both systems require the harm to be unreasonable/more than can reasonably be tolerated, implying that there is no absolute right to silence in either jurisdiction, nor an absolute right to nothing changing.  

The question you would therefore have to ask yourself is, does the harm meet these tests.  If it doesn't, then it does just become an unfortunate consequence of living in close proximity to others, much like the harm caused by lawnmowers, parties, oil boilers, ventilation fans, DiY, noisy hobbies, screaming kids etc.  Is there any scope for talking to your neighbour and perhaps adding some sound absorbing material inside the shed (I wish I could add some sound absorbing material around our neighbours lawnmowers and screaming kids)?

Posted by: @jamespa

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The question you would therefore have to ask yourself is, does the harm meet these tests.

I cannot prove it, because local councils and even the Ombudsman do not take into consideration medical references (I provided both of them with 2 letters from my GP explaining my health condition).

What I am trying to say is that (a) measuring the noise impact of ASHPs with the NR value is absolutely irrelevant to the 'real' noise impact of them and (b) Local Councils have the power to 'create' specific 'conditions' for specific installations which means any installation would eventually get the approval of Councils. For instance, my local council 'created' a unique 'condition' for my neighbour's ASHP just to approve the application: an at-source noise measurement (adjacent to the ASHP) to 'predict' the sound level 1m from the facade of my house. Then, based on this 'prediction', 'to predict' the NR value inside my bedroom.

I believe the Condition is ridiculously biased because approving compliance with NR value must be based on measurements "within the noise sensitive properties". Moreover, the daytime NR measurement is for "all habitable room", not the bedroom.  

Posted by: @persephone

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I cannot prove it, because local councils and even the Ombudsman do not take into consideration medical references (I provided both of them with 2 letters from my GP explaining my health condition).

I am of course sorry to hear that. 

It raises an interesting point though - which is can they (in law) take into account medical references.  I don't think you are suggesting that the heat pump is injurious to your health, so what you are presumably implying is that something about your condition makes you more sensitive than others.  Now the test, in England anyway, is that the harm must be 'unreasonable' and this generally refers to standards of the 'reasonable man' (or the man on the Clapham Omnibus). 

I don't think (but am not certain) that the 'reasonable man' has the health or other characteristics of the claimant, I think they are assumed to be of normal health and average in more or less every way.  In many ways it would be rather unfair if the specific characteristics of the claimant were factored in, because it would mean that the respondent becomes responsible for adapting his behaviour as a result of the claimants specific condition, which he may not know and is not entitled to ask about!  Clearly that could lead to some bizarre consequences, which I would expect judges to have avoided by ruling against (but again I stress I don't actually know).

I don't doubt @abernyte may have something to add about the Scottish legal position.