Inner House rejects Motherwell tenants’ appeal over contaminated land claims

Lord Doherty, Lady Wise and Lord Ericht upheld an earlier decision that the tenants had not proved either that the landlord breached its statutory obligations or that any alleged contamination caused them harm.

The case centred on the Watling Street development in Motherwell, built in the late 1990s on land previously occupied by the Motherwell Iron and Steel Works and later other heavy industries. Parts of the site were constructed on “made ground”, essentially infill material left behind after industrial use.

This material contained substances commonly found on former industrial sites, including asbestos, ash, semi‑volatile organic compounds and polycyclic aromatic hydrocarbons. These can pose risks at high levels, but the key question for the court was whether the levels present were harmful and whether the landlord had failed in its legal duties to ensure the homes were safe.

Thirteen tenants gave evidence about their health concerns and their experiences living on the site. They claimed the landlord had breached:

• Section 113 of the Housing (Scotland) Act 1987, which requires landlords to ensure homes are fit for human habitation, and
• Schedule 4, paragraph 1 of the Housing (Scotland) Act 2001, which requires social landlords to keep homes in a reasonable state of repair.

The tenants argued that the presence of contaminants meant the homes were not safe and that the landlord should have known this and acted.

They also argued that the Lord Ordinary had taken the wrong approach to the evidence and should have accepted their accounts as sufficient proof of harm.

Lord Ericht, giving the court’s opinion, said the tenants’ personal accounts could not, on their own, prove that contamination caused their health issues. In civil cases, the burden of proof lies with the pursuer (in this case, the tenants) to show that the landlord’s actions materially contributed to their harm.

The court highlighted several key points:

1. The judge was entitled to test the tenants’ evidence

The tenants argued their testimony should have been enough. The court disagreed.

Lord Ericht said the judge was entitled to compare their accounts with medical records and expert toxicology evidence. He noted that the tenants’ own expert accepted there was no scientific literature showing health effects from low‑level exposure in similar housing situations.

2. No evidence of actual illness caused by contamination

The court noted that none of the tenants had developed cancer or other illnesses that could be linked to the contaminants. Without medical evidence showing a connection, the claim could not succeed.

3. Multiple possible causes of harm

Where more than one possible cause exists—and only one involves a breach of duty—the law requires the pursuer to show the breach made a material contribution. The court found the tenants had not met this threshold.

4. Environmental Protection Act criteria were relevant

The tenants criticised the judge for referring to the definition of “contaminated land” under the Environmental Protection Act 1990, arguing it was irrelevant.

The court rejected this, noting that the tenants themselves had introduced this evidence. The judge was therefore entitled to consider it when assessing the expert testimony.

The Inner House found no error in the original judgment. The appeal was refused, and similar decisions will follow in the related cases.