Legal action; Barony Parochial Board v. R. Binning & Sons, 1870

Barony Parochial Board v. R. Binning & Sons

Decision in the Nuisance Case near Alexandra Park

The case of the Barony Parochial Board v. R. Binning & Sons, paraffin oil and coal-tar distillers, Blochairn Chemical Works, with reference to the nuisance alleged to be caused by the operations at the works, was continued, before Sheriff Bell, yesterday. Mr J. G. Wright (of Messrs Wright, Johnston & Mackenzie, writers, Glasgow), appeared for the petitioners; and Mr France appeared for the respondents.

Robert Binning was recalled, and, on being examined by Mr FRANCE, stated that his works were constructed on the best and most modern principles. He did not know how the works could be improved. Cross-examined by Mr WRIGHT - When last examined as a witness, you stated that after distillation the oil was washed with sulphuric acid and soda? - Witness- Yes. On the completion of the process a sludge remains which you call acidulated tar?-Yes. What do you do with that tar - It is redistilled. The oil is separated from the acid; there is no residuum, and the process of distilling this tar is not offensive. Some people burn the tar, others bury it, but we distil it.

This closed the proof, and the debate was then commenced by Mr WRIGHT (for the petitioners), who said the complaint, which had been brought by the Barony Board as Local Authority, was founded upon the Public Health Act, 1862. The specific complaint was that the respondent carried on works injurious to the health of the neighbourhood, or so conducted them as to be offensive or injurious to health. The dates specifically libelled were the 28th of August,1st and 21st days of September, and the other dates of September preceding the date of the complaint, which was presented on the 23d of the month. '

The defence stated by the respondents was a denial that the work carried on by them was offensive or injurious to the health of the neighbourhood, or that it was so conducted as to be offensive or injurious to health, He submitted that they had evidence to prove that the work was both offensive and injurious to health. After referring to the evidence of Dr Cowan and that of some other witnesses, arguing that their testimony proved his case, Mr Wright observed that the evidence given by Dr Cowan was corroborated by a great many witnesses, who spoke to the injurious effect which was produced on their health by this smell, which had been traced to the Blochairn Chemical Works, and that they all concurred in saying that it produced a choking sensation, and they felt nauses.

They had heard very important information from workers in the neighbouring bleachfleld, who said that when the effluvium was sent out they had to close the apertures or openings which were required for ventilation, preferring rather the want of ventilation than the effluvium which came from the respondents works. There l had been no fewer than twenty-one witnesses who had given evidence directly for the pursuer, but, turning to the evidence given for the defence, they had several of the witnesses admitting, in cross- examination, that they did not like the smell which came from the respondents' works. Having alluded at length to the evidence, and contended that it was amply sufficient to show that the effluvium sent out of the respondents' works was offensive and injurious to health Mr Wright went on to speak of the remedy which he considered should be applied.

The petitioners did not ask his Lordship to ordain the removal of the respondents' works, because, as he had pointed out at the outset, it was very distinctly proved that the nuisance occurred only at intervals, and seemed not to be a necessary part of the work carried on in the place that this effluvium should be emitted. It was therefore enough for the purpose of the Local Authority that his Lordship should ordain the discontinuance of that particular state of things; and if that should be done, and the respondent shall fail to comply with the decree pronounced, then they would incur certain penalties which were prescribed by the Act. Regarding the nuisance, it was enough for the petitioners that they should prove its existence. The respondent had examined a number of gentlemen who inspected the works on days and weeks subsequent to the dates specified in the complaint, and these gentlemen had given it as their opinion that the works were conducted as well as they could be and on the most improved principles, and that the work produced no nuisance he pointed out, however, that that evidence had name reference to the evidence given as to the nuisance on those particular days stated in the petition. It i served, however, to point out the fact that the i ,works could be carried on without creating a nuisance. The nuisance of which the petitioners complained only existed at intervals of time, and the evidence of the medical gentlemen examined on behalf of the respondent established the fact that he would have no difficulty whatever in corn- plying with a remedy or decree from his Lordship to discontinue the nuisance. He asked his Lordship to find the complaint proved, and to give a decree ordaining a remedy or discontinuance of the nuisance complained of.

Mr FRANCE (for the respondents) said the case was one which very seriously affected the interest of his clients. If the Public Health Act, which gave so great powers to Judges, were strictly enforced, the whole of the chemical works in the city of Glasgow could be put down, and if the word "offensive" received the very limited interpretation which his friend give it. With regard to the respondents' works, so far as situation was concerned, they could not be in a better position, and they were situated in a part of the city which seemed to have been set aside for public works. In very densely populated districts there were many persons who were carrying on work of a similar description to the respondents, and in addition were also carrying on the work of distilling tar and ammonia, as well as shale oil. The respondents had also distilled tar and ammonia at one time, but not for the last two years. These works to which he had referred were not considered offensive or injurious to health, and therefore the respondents works has less chance of being so.

Sheriff BELL-If no nauseous smell comes from these works it infers that they are conducted in a less offensive manner than the defenders' works ?

Mr FRANCE - Yes, my Lord; but there is another inference which could be drawn, that Mr. Binning has been selected when he ought not to have been. He then went on to say that no objection had been, or could, be taken to the way in which the respondents' work had been carried on. The machinery and the utensils were of the beat description, and had been erected at great expense. With regard to the coke which was used, it had been proved that it contained no sulphuric hydrogen, and it was was proved that it had antiseptic properties; was not by any means dangerous, but was one of the safest articles that could possibly be a exposed. There was nothing disagreeable or dangerous in the process of consumption of the coke ; in the furnaces, and there could be no sound objection to the articles being used. Mr Wright had said a nuisance existed, but had not told them how it arose. He did not believe there was a nuisance, and they had evidence to show that it was impossible there could be a numinous at all, Nobody could deny that from paraffin works a strong, smell of paraffin must come. The smell of paraffin would not be the most pleasant. but it was not an offensive smell in the sense of the Act. He considered that the fact that the ground at Dennistoun had been feued so rapidly, and that the feuing operations had risen so much in value, was the best test that there really was no good cause for objection to the works. If the smell was injurious to health, it was a curious thing it did not interfere with feuing in the neighbourhood. The result of the whole investigation in this case proved that the respondents' works were lawfully carried on. Neither scientific nor medical men could find any fault with the way in which the business was conducted, and practical men could not find out how it was possible for any nuisance to arise. He submitted, therefore, that it was proved that the respondents' works, as conducted, were not injurious to health. - The preponderance of the evidence was clearly in favour of this, that the smell which came from the works, while it might not be a pleasant smell, was certainly not offensive in the sense of the Act. When taking everything into account, he thought his Lordship would have no difficulty in finding that the defenders had done all they could, and that it would he a very great hardship if they were ordered to discontinue a nuisance when nobody could tell that there was anything in connection with the works that in way could possibly be objectionable

Mr WRIGHT, in reply, said he was happy to able to say that what he had asked his Lordship to a ordain would be no hardship to the respondents, because it had been proved that the works could be conducted at times as to cause no nuisance at all

The SHERIFF said he was not asked to ordain n the discontinuance of the Works, but to give a decree to prevent the injurious effects complained of. He thought it was proved by the evidence which had a been led that, as described by some of the witnesses, "a disgusting, nasty, loathsome, and nauseous smell' came from the respondents' works at times. He rather suspected that it must also be held to be proved that that smell was of such a character as on certain constitutions,at all events, to be offensive to health. They were told that at the work, in the process of distillation, there was a residuum, which was a residuum from the oil distilled, and was called coke, and that coke contained certain proportions of oil and gas. Now, that coke was made use of for heating the furnaces along with coal. It was made use of in different proportions, and, for anything he knew, there was no coal at all. He would like very well to know whether the giving up the use of coke altogether and the using of nothing but ordinary coal would prevent the nauseous smell. They knew very well that there had been nauseous and disgusting smells, and it did not appear to him to be an improbable theory that, when coke was used in a much greater proportion than ordinary coal, the smell was most disagreeable. It would impose a hardship on the defenders if he was simply to ordain the prevent the injurious effects, because the defenders might be brought up for any penalty in the course of a month if somebody found the same nauseous and disgusting smells as formerly. If the defenders would agree to his pronouncing an order upon them not to use coke, he thought that would probably prevent the injurious effects, and would be a specific order and they could not be brought up for any penalty unless it was proved that they had used coke, notwithstanding that they had been forbidden to use it. He knew that it did not appear distinctly from the evidence that coke created the smell, but he had a suspicion that it was the cause,

Mr WRIGHT stated that the petitioners had made the offer to the respondent two months ago to make the experiment his Lordship proposed, But the offer was refused.

After a long conversation Mr France stated that he thought is would be much better for the respondents to undertake to do what his Lordship had proposed than to have an order of this kind given.

The SHERIFF asked whether the pursuers would accept of an obligation

Mr WRIGHT said they could not do that Mr. Binning had been asked to give that obligation before the case was brought to court by had refused, and they could not take it now

The SHERIFF said he had a suspicion he did not say it was proved, that the doing away with the use of coke would materially affect the violence of the smell,

Mr WRIGHT said the difficulty in agreeing to the proposal of the respondent to enter into obligation was that, if the nuisance reoccurred and was found that he had used no fuel except coal, they would require to present a new petition. After some conversation:

The SHERIFF- I think I will ordain him to prevent injurious effects. It appears to me that the experiment ought to be tried of giving up the heating of furnaces with anything but coal. If the respond ant does that and notwithstanding at that, he is brought up for penalty, I will empower that the penalty will be slight. It might however result in this, that he might have to adopt some other experiment. As I look upon this case as a sort of experimental one, I am not disposed to give expenses. The proceedings then terminated.

The Glasgow Herald, 3rd December 1870