Background
This case concerned a petition by Aldi Stores Limited in respect of a decision by Inverclyde Council to refuse or at least delay performing its statutory duty under section 29 of the Building (Scotland) Act 2003 ("the 2003 Act"). Aldi were the proprietors of a store and car park neighbouring premises in a severely dilapidated condition. Matters came to a head when a piece of masonry fell from the neighbouring property into the Aldi car park.
Statutory obligation
Section 29 of the 2003 Act places an obligation upon a local authority to carry out emergency works to prevent access to a dangerous building and to safeguard surrounding property and individuals. If these works are insufficient to remove the danger, a local authority must serve a dangerous building notice upon the owner of the dangerous property.
A dangerous building notice specifies the name and address of the owner of the dangerous building, the required commencement and completion dates for remedial work as determined by the local authority acting reasonably and the dangerous aspects of the building. It also details the work necessary to comply with the notice and includes a note on rights of appeal. Such notices also set out the repercussions should the notice not be complied with.
The legislative intention behind section 29 was to ensure that the public was not put in danger because of a dangerous building regardless of whether the building’s owner had failed or refused to act.
Facts of the case
In September 2024, Aldi notified the local authority that masonry from an adjoining former factory had fallen into their store car park. An area of the car park was then cordoned off. Aldi wrote to the local authority on multiple occasions requesting that a dangerous building notice be served upon the owner of the former factory. Months later, no such notice had been served.
Aldi thereafter raised a petition for judicial review of the local authority’s decision not to issue a dangerous building notice. Approximately one month after the petition was served, the local authority finally issued the necessary notice.
Having fulfilled the purpose of the judicial review, Aldi moved to dismiss the petition. It sought expenses on the basis that the petition would not have been required if the local authority had fulfilled its statutory duties promptly.
The local authority opposed the award of expenses, arguing that it had taken all reasonable steps required under the 2003 Act and section 10 of the Scottish Building Standards Procedural Handbook (3rd Edition) ("the Handbook"), which provides guidance to local authorities on how to comply with their powers and duties under section 29. The local authority also submitted that it faced a number of complexities, including that the former factory was a listed building and that one of the owners had recently passed away while the other was seriously ill.
Decision of the court
Lord Braid, sitting in the Outer House, determined that the factory was in a dangerous condition prior to the lodging of the petition. He also found that the local authority had unreasonably delayed its engagement in this matter, despite the complexities the respondent claimed to face.
In Lord Braid’s view, the local authority had been given prior warning of the petition but had failed to provide any assurance or clear undertaking as to the timescale within which the notice would be served. Although there is no time limit set out in section 29, the Handbook, which the local authority claimed to have adhered to, suggests that a swift and expeditious response is necessary to comply with section 29.
Lord Braid outlined three incontrovertible facts. First, the building was dangerous in September 2024. Second, from then until the point the matter was considered by the court, the building continued to be dangerous and nothing had been done to alleviate that danger. Third, it took the local authority almost a year to issue the dangerous building notice. Against this backdrop, Lord Braid awarded expenses in favour of Aldi.
Lessons to be learnt
Local authorities should ensure that any report of dangerous buildings is investigated as swiftly and proactively as possible. They should maintain proper and full engagement with concerned parties and avoid any unnecessary delay in issuing the necessary dangerous building notice.
For those affected by a dangerous building, detailed records should be kept of all interactions with local authorities and clear deadlines given with specific repercussions if these are not adhered to.
On a wider basis, this case is a timely reminder that where a defender or respondent only meaningfully engages with the other party once court proceedings are commenced, there is a real risk of an adverse award of expenses even if they comply shortly after proceedings begin.
This article was co-authored by Mitch Peacock, Trainee Solicitor in MFMac's Litigation & Dispute Resolution team.
