Lord ordinary finds unreasonable delay in issue of dangerous building notice after stonework fell into car park

About this case:

• Citation:
  [2025] CSOH 110
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lord Braid

Aldi Stores Ltd had sought for Inverclyde Council to comply with its duty under section 29 of the Building (Scotland) Act 2003 in respect of the risk posed by the former Glebe Sugar Refinery building adjoining the petitioner’s store in Greenock. The petitioner did not opposed dismissal of the petition now that its purpose had been served but argued that expenses ought to be due to it based on the respondent’s conduct.

The petition was heard by Lord Braid in the Outer House of the Court of Session, with Young, advocate, appearing for the petitioner and F McLeod, solicitor advocate, for the respondent.

Dismissive attitude

On 5 November 2024, the petitioner’s solicitors wrote to the respondent to notify it that masonry from the old refinery had fallen into the car park of its store on Patrick Street, and to call for urgent action to be taken. The respondent had previously received notification that masonry had fallen from the building, following which it erected a cordon that encroached into the petitioner’s car park. Additional emails stating that the petitioner wished the respondent to take action were sent on 15, 19, and 21 November, and on the latter date the respondent’s Mr Henderson stated that an investigation was ongoing.

By 29 May 2025, no dangerous building notice had been issued despite repeated inquiries by the petitioner and an indication from the respondent that a condition survey would be carried out. The petitioner had also commissioned its own non-intrusive survey which concluded that the building was a health and safety risk. A dangerous building notice was finally served on the building’s owners on 23 September 2025, nearly a month after the petition was served. Thereafter the respondent sought dismissal of the petition on the grounds that it was academic and otiose.

Against the factual background, the respondent submitted that the respondent had taken all steps reasonably required of it in terms of the 2003 Act. The petition was predicated on the proposition that it ought to have been aware by 29 May 2025 that the building was dangerous, but that was inconsistent with the respondent’s duty to be satisfied for itself that this was the case. In all the circumstances, neither party had achieved success and therefore each should bear its own expenses.

For the petitioner it was submitted that the proceedings had been caused by the respondent’s unreasonable conduct and could have been avoided if it had engaged in an open and candid manner. While it was appreciated that a local authority may require time to comply with its duties, it had never given any definite response regarding timescale. The golden thread running through the correspondence was long periods of delay and a dismissive attitude to the petitioner’s concerns.

Dragging its heels

In his decision, Lord Braid noted that the purpose of litigation had been achieved, saying: “In considering where the expenses should fall, the question is: which party caused the litigation? Was it the respondent, through its failure to comply with the duty imposed on it by section 29, and/or an unreasonable stance adopted in its correspondence with the petitioner’s agents? Or did the petitioner jump the gun by presenting its petition prematurely at a time when it was aware that the respondent was in the process of obtaining its own report with a view to then considering what section 29 required of it, if anything?”

He continued: “The starting point is to note three incontrovertible facts. The first is that the building was in a dangerous condition in September 2024, which can be inferred from the facts (i) that masonry had fallen from it, and (ii) that the respondent took urgent action to alleviate or mitigate the risk, which it concedes was done in terms of section 29(3). The second incontrovertible fact is that the building has continued to be dangerous since that time to the present day. That can be inferred from (i) the fact that no repairs to the building have been carried out to remove the danger [and] the fact that the respondent has itself now issued a dangerous building notice. The third incontrovertible fact is that it took the respondent the best part of a year to issue the dangerous building notice.”

Considering what degree of latitude ought to be afforded to the respondent, Lord Braid said: “The length of time taken to perform the duty was either one year (from the date the respondent first became aware of the fallen masonry) or just short of eleven months (from the date of the petitioner’s solicitors’ letter of 5 November 2024). The reasons for the delay included several periods of inactivity (not least, the delay in first contacting the owners) and an unjustifiable degree of latitude given to the owners. Finally, the petitioner suffered prejudice by reason of the delay, in that it was deprived of the use of part of its car park by the cordon round the building. All of those point to the inexorable conclusion that the respondent ought to have served a notice sooner than it did.”

He therefore concluded on expenses: “The overall impression given in the correspondence as a whole was that the respondent was simply dragging its heels, and seeking an excuse not to comply with its statutory duty. There were occasions when the respondent either gave information which was inaccurate (such as whether the owners had already been contacted) or made representations as to timescale which were not fulfilled (such as then its own report would be instructed). Even by 29 August 2025, the petition might have been averted had the respondent unequivocally undertaken to the petitioner that it would serve a notice; but it did not do so, in the knowledge that a petition for judicial review by that date had been threatened.”

The petition was therefore refused at the agreement of both parties, but with the petitioner entitled to expenses from the respondent.