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PRIYA PROPERTIES LIMITED AGAINST INVERCLYDE COUNCIL


Submitted: 15 November 2016

SHERIFFDOM OF NORTH STRATHCLYDE AT GREENOCK

[2016] SC GRE 81

 

B486/14

JUDGMENT OF SHERIFF DEREK J HAMILTON

 

In the cause

 

PRIYA PROPERTIES LIMITED, a company incorporated under the Companies Acts having its registered office at 1 Mansion Avenue, Port Glasgow PA14 6QP

Pursuers

 

Against

 

INVERCLYDE COUNCIL, a local authority and in terms of the Local Government (Scotland) Act 1994, having its principal office at Municipal Building, Clyde Square, Greenock, PA15 1LY

Defender

 

Alt: Mr Douglas Fairley QC, instructed by K Carruthers, Morton Fraser, Solicitors, Edinburgh

Act: Mr Mark Lindsay QC, instructed by J Douglas, Inverclyde Council

 

GREENOCK:  15 November 2016

Parties

[1]        This is an Appeal by Summary Application in terms of Section 129 of The Housing (Scotland) Act 1987 (the Act).  The Pursuers seek revocation of a demolition order served on 26th June 2014, or alternatively a suspension of that order. The order and this action relate to property at Flat 2/3, 7 Robert Street, Port Glasgow.

[2]        The Pursuers are Priya Properties Limited, a company incorporated under the Companies Acts having its registered office at 1 Mansion Avenue, Port Glasgow PA14 6QP. They are the owners of property at Flat 2/3, 7 Robert Street, Port Glasgow, the subjects of this appeal.

 

Procedure
[3]        This appeal is one of four appeals (referred to hereinafter as ‘Category 3 properties’) all calling before me for a hearing on the Pursuers’ motion, and all in relation to demolition orders made by Inverclyde Council on 26th June 2014, in respect of properties within the Clune Park area of Port Glasgow.  The three other cases calling for hearing are cases, reference B443/14 (Flat 3/3, 21 Robert Street, Port Glasgow) B445/14 (Flat 2/2, 17 Robert Street, Port Glasgow), and B503/14 (Flat 1/1, 25 Robert Street, Port Glasgow). All Pursuers were represented by Mr Fairley, senior counsel, and the Defender was represented by Mr Lindsay, senior counsel, in all matters.  

[4]        The Defender is the local authority for Inverclyde. In June 2014, it served demolition orders in respect of a substantial number of properties within the Clune Park estate in Port Glasgow. Two hundred and seventy seven summary applications to revoke those demolition orders were lodged by aggrieved parties.  

[5]        All two hundred and seventy seven summary applications first called in 2014. Answers were ordered in all cases and the cases largely progressed as a body of cases together. The cases underwent sundry procedure and deposits for expenses were ordered in the majority of cases. Some cases were dismissed along the way.

[6]        Of the remaining cases (over two hundred and thirty), six applications were chosen for an evidential hearing (I will refer to them as the ‘Category 1 properties’). It was agreed between parties involved in the various summary applications that the six Category 1 properties would proceed to a hearing, with evidence being led in all six cases together. The remaining cases were then sisted. There was no agreement that any decisions in those Category 1 properties’ appeals would be binding on the other sisted applications.

[7]        Parties agreed that I should issue a lead judgment covering all six of the Category 1 properties, and simply refer to that judgment in the other five cases.  I heard evidence over four days in January 2016, submissions over one day in April 2016, and issued my judgments on 18th August 2016. The lead judgment was issued in Ewing v Inverclyde Council dated 18th August 2016 Case Ref B434/14. My judgments quashed the demolition orders in each of the six Category 1 properties.

[8]        Following upon the judgments being issued, those acting for the Pursuers in a number of the remaining sisted summary applications, lodged motions to recall the sists in a limited number of cases (I refer to this second group of properties as the ‘Category 2 properties’). The applications that were chosen related to properties that were in the same buildings as the Category 1 properties. As the demolition orders had been quashed in respect of the Category 1 properties, the other properties within those buildings could not be demolished in terms of the demolition orders that had been served, and therefore the demolition orders in respect of those properties (the Category 2 properties) were also quashed.

[9]        Those acting for the Pursuers also lodged motions in a third category of cases (the four Category 3 properties referred to above). Those motions sought to recall the sists and to have diets of proof assigned. When the motions called, the sists were recalled, but rather than move for diets of proof to be assigned, the Pursuers moved for orders quashing the demolition orders in terms of Crave one in each of the cases.  Having heard submissions from senior counsel for the Pursuers, I continued the hearing to allow the Defender’s senior counsel an opportunity to reply.

 

Submissions by Parties
Pursuers

[10]      It was submitted that in 2014 the Defender had inspected a limited number of properties within the Clune Park estate, and had sought to extrapolate its findings in relation to those properties across many other properties within the Clune Park estate. The Defender had then served hundreds of demolition orders, and had thereafter proceeded, on the basis that all of the properties subject to the orders did not meet the tolerable standard as defined in Section 86 of the Housing (Scotland) Act 1987 (as amended), by reason of the properties being structurally unstable. The Defender’s position was that the roofs and walls of the buildings within which the properties were located, were liable to collapse due to movement caused by corrosion expansion of the steel embedded within the roof structure. The Defender’s secondary position, developed very late in the day and just prior to the hearing on the six Category 1 properties, was that the roofs of the buildings were liable to collapse due to extensive debonding.

[11]      In the six Category 1 cases, the Court found that it had not been proved that as at the date of service of the demolition orders, the six Category 1 properties were structurally unstable by reason of corrosion expansion or debonding, or by reason of any other factor. The foundation for serving the demolition orders had been totally undermined by the decision in the lead cases, B434/14.

[12]      The Defender, at Proof, had developed a secondary position, that of extensive debonding, and had submitted that the properties were structurally unstable due to the risk of roof collapse as a result of extensive debonding.  The lead case of B434/14 had found that there was no evidence of extensive debonding.  The Defender’s position at Proof that the properties were, at that stage, structurally unstable, and therefore below the tolerable standard as a result of extensive debonding, had also been completely undermined in the earlier judgment.  That being the case, there was nothing before the Court to support the Defender’s decision to serve the demolition orders initially, or to have them remain in place as at the date of the hearing, due to the structural instability of the properties, by reason of corrosion expansion, or by debonding, or by reason of any other factor. That being the case, it had not been proved the six Category 1 properties were then currently below tolerable standard as defined in Section 86 of the Housing (Scotland) Act 1987.

[13]      It was decided in advance of the hearing of the Category 1 cases that the six Category 1 cases were not to be treated as test cases. It was the case, however, that the demolition orders across the Clune Park estate had all been served on the same basis. Further, the evidence presented to support the continuation of the demolition orders in the six Category 1 cases was claimed to exist throughout the Clune Park estate and to affect all of the properties that had been served with demolition orders. That meant the decision in the Category 1 cases effectively was a decision that applied across the estate. 

[14]      The evidence in respect of the Category 1 properties had been undermined.  The Defender, if it intended to insist on the demolition orders remaining in place, had to produce other evidence to the Court to suggest that the Category 3 properties, which were now before the Court, were below the tolerable standard by reason of them being structurally unstable. 

[15]      The Pursuers had been advised by the Defender, on 1 September 2016, that a further report on the properties in the Clune Park estate was being commissioned by them.  The Defender had stated they were not prepared to revoke the demolition orders on the cases outstanding, as it was their view that the properties were below the tolerable standard. The Pursuers asked the Defender when their report might be available, what properties it covered, what properties had been inspected, and what defects had been identified. 

[16]      The Pursuers had been given a copy of a report by Punch Consulting Engineers dated September 2016, which had been commissioned by the Defender.  The Punch report dealt with seven properties within the Clune Park estate, all of which were owned by the Defender.  None of the properties inspected were properties subject to Summary Applications to quash the demolition orders.  It was submitted that the report had no relevance to the properties currently before the Court. 

[17]      The Defender had instructed Punch Consulting Engineering in May 2016.  The Defender had had six months to reconsider their position in relation to the Category 3 properties.  The Defender had not inspected a single one of the Category 3 properties and had produced a report which did not deal with any of the Category 3 properties.  The report dealt with properties owned by the Defender and which had been allowed to deteriorate.  It was submitted that a report in relation to those properties was of no relevance to the Category 3 properties. The Punch report acknowledged that the buildings across the whole estate were all different.  The Defender was once again seeking to take evidence in respect of some properties and attribute that evidence to other properties within the estate.  That was what the Defender had tried to do in respect of the Category 1 cases, and the Court had held they were wrong to do so. 

[18]      It was for the Defender to state what their defence was to the Summary Application.  The defence on record had been completely undermined by the decision in the Category 1 cases.  It was submitted that the Defender should not be insisting on demolition orders remaining in place where they had no factual basis for so doing.  The Defender’s factual basis for serving the demolition orders, and for maintaining their existence, had now gone.  There was no evidence to replace the discredited evidence, and the Defender had altered its position. It no longer relied on corrosion expansion as a cause of movement of the roofs and elevations. It now simply relied on debonding as the cause of structural instability. There had been no evidence of extensive debonding in the six Category 1 cases, and the Defender had simply not improved on that position in relation to the Category 3 properties.  During the hearing of this motion the cause had been continued to allow the Defender to inspect the four Category 3 properties now before the Court.  The Defender had only inspected one of the four properties and had not specified its findings in relation to that property. 

[19]      It was submitted that the continued existence of the demolition orders on the properties was an interference with the Pursuers’ human rights.  The Pursuers were prohibited or restricted in their dealing with their heritable properties.

[20]      In response to the Defender’s submission that the conditions for summary decree had not been met, Mr Fairley submitted that the motion before the Court was not one for summary decree.  Where summary decree in an action is sought, there were two consequences.  Firstly, it was a decree in foro, rather than a decree in absence or default.  Secondly, the granting of decree meant that the issue was res judicata.  That meant the Defender was deprived an opportunity in all time coming of bringing a legitimate defence.  The Pursuers were not trying to do that in this case. They were seeking decree in proceedings which should proceed summarily.  If the motion was granted, the Defender would not be precluded from returning to the Court.  The Defender was still legitimately able to exercise its statutory powers under section 85 of the Act.

 

Defender
[21]      It was submitted the Pursuers’ motion was for summary decree, and the conditions for summary decree had not been met.   The general principles for summary decree were set out in paragraph 15 of Henderson v 3052775, Nova Scotia Limited, 2006, UKHL 21.  There was a high test to be met for summary decree. It was submitted that motions of this nature should not be a substitute for a diet of debate.  It was generally accepted (paragraph 17) that it was permissible for the Court to look behind the pleadings and to look at the available evidence.  If there was an outstanding issue of fact to be determined, the matter should proceed to Proof. 

[22]      Mr Lindsay accepted that the Court could have regard to the findings in the six Category 1 cases, but did not accept that those findings were determinative of the motions before the Court in the Category 3 cases. 

[23]      The Defender claimed that the properties across the estate were not of a tolerable standard because they were structurally unstable.  It was accepted that the Defender’s initial position had been that the structural instability was as a result of corrosion expansion of the embedded steel in the roofs, causing outward movement of the front and rear elevations.  That had led to cracking and, ultimately, in the Defender’s opinion, would lead to collapse of the walls and roofs.  The Defender had also latterly proceeded on the basis that there was debonding of the concrete in the roofs, which had weakened the roofs, leading to possible internal collapse of the roofs.  It was accepted that Punch Consulting Engineering considered that outward movement of the front and rear elevations was not structurally significant.  Punch, however, did say that debonding was of structural significance.  There was, therefore, an issue before the Court, of structural instability as a result of debonding. 

[24]      It was submitted that the provisions of Section 86 of the Housing (Scotland) Act 1987 regarding tolerable standard were extensive and that structural stability was only one factor.  A concession had been made in the six Category 1 cases that evidence would be limited to only structural stability.  It was submitted that in the four Category 3 cases, all of the Section 86 factors were relevant to the issue of tolerable standard.   Notice had now been given in letters to the Category 3 proprietors dated 5 October 2016, that other factors relating to tolerable standard in addition to structural stability, applied to the Category 3 properties, and some of those were provided for in Section 86(1)(c),(g) and (i).  The Defender’s position was that the Category 3 properties were beyond economical repair.  Taking everything together, as detailed in the demolition orders and in the letters dated 5 October 2016, the Category 3 properties should be demolished. 

[25]      The Court was also required to exercise a de novo jurisdiction, and the onus was on the Pursuers to show that the properties were of tolerable standard. That issue had to be judged at the date of the hearing.

[26]      The Defender’s primary position was that the Court should consider everything de novo, i.e. all aspects of tolerable standard, as set out in Section 86.  Its secondary position was that if the Court was not prepared to consider those additional matters, the Court had to consider structural stability de novo. That issue had been narrowed and was now simply an issue regarding debonding.

[27]      In support of the Defender’s position re structural stability of the roof, reference was made to the Punch report dated October 2016, and to an additional spreadsheet lodged at the hearing.  The properties inspected by Punch had been chosen as they were owned by the Defender and the Defender could get easy access to them and could carry out more invasive investigations. The pattern of deflection in the roofs of the buildings was widespread. The Punch report had concluded that the construction of the roofs throughout the estate was broadly similar. It was a reasonable assumption therefore that the cause of deflection in other roofs in the estate would be the same as for the properties inspected by Punch.  The Punch report’s conclusion was that the roofs inspected could collapse at any time.  It was submitted that that conclusion could be extrapolated across other properties in the estate, including the Category 3 properties. 

[28]      It was submitted there was evidence present to indicate that the roofs of the Category 3 properties were unstable and the Court could not be satisfied that there was nothing worthy of enquiry.

 

Discussion

[29]      The motion before me in this case seeks decree in terms of Crave 1 of the Summary Application. Crave 1 is for an order in terms of Section 324(6) of the Housing (Scotland) Act 1987 quashing the demolition order served by the Defender in respect of the flatted property at Flat 2/3, 7 Robert Street, Port Glasgow. The motion is made at a stage in the proceedings where evidence on the merits has not yet been heard. The Defender submitted that the Pursuers’ motion was for summary decree, and the conditions for summary decree had not been met.  I was referred to the case of Henderson v 3052775, Nova Scotia Limited, 2006, UKHL 21 where the general principles for summary decree were set out in paragraph 15. 

[30]      It has to be recognised that the issue before me is proceeding as a summary application. Section 50 of the Sheriff Courts (Scotland) Act 1907 provides that:

“In summary applications (where a hearing is necessary) the sheriff principal shall appoint the application to be heard at a diet to be fixed by him, and at that or any subsequent diet (without record of evidence unless the sheriff principal shall order a record) shall summarily dispose of the matter and give his judgement in writing.”

 

Rule 2.31 of the Act of Sederunt (Summary Applications, Statutory Applications and Appeals etc. Rules) 1999 provides:

 

Power of sheriff to make orders

 

The sheriff may make such order as he thinks fit for the progress of a summary application in so far as it is not inconsistent with section 50 of the Sheriff Courts (Scotland) Act 1907.”

 

[31]      It is clear that the Sheriff has a very wide discretion in how he deals with a summary application. He can rule on the application without the necessity of a hearing where he considers one is not necessary. Section 50 compels him to summarily dispose of the matter. Rule 2.31 permits him to make such order as he thinks fit for the progress of the application. Summary applications often challenge a decision made by another, and such applications often have to be lodged within a very short time of the decision being challenged. Proceedings should then progress summarily, and wide scope is given to the Court to enable that to happen. Where a decision made by another is under challenge by means of a summary application, the effect of a successful judgement for the challenger in the summary application process will often place parties back to where they were before the decision under challenge was made. Mr Fairley submitted that disposal of the summary application before me (either at this stage if his motion is successful, or after a hearing with evidence) would have the effect of placing parties back where they were before the demolition order was served. In that event, the original issue of whether or not the property was below the tolerable standard could still be considered by the Defender. That was quite unlike the situation where a party moves for summary decree in litigation. Summary decree has the effect of determining the issue in dispute for all time. A summary decree is a decree in foro, rather than a decree in absence or default.  The granting of decree means the Defender is deprived an opportunity in all time coming of bringing a legitimate defence.  None of these factors arise here and I am satisfied the motion before me is not a motion for summary decree. It is a motion for decree in proceedings that should be dealt with summarily, and therein lies the difference. For that reason I do not consider the case of Henderson v 3052775, Nova Scotia Limited to be of assistance, and I am satisfied it is just to consider the Pursuers’ motion for decree in terms of Crave 1 of the summary application before me.

[32]      The Defender’s position was that a large number of properties across the Clune Park estate were not of a tolerable standard because they were structurally unstable. The Defender’s initial position was that the structural instability was as a consequence of corrosion expansion of the embedded steel in the roofs, causing outward movement of the front and rear elevations. That had led to cracking which, ultimately, in the Defender’s opinion, would lead to collapse of the walls and roofs. That was the basis on which the Defender proceeded to serve the demolition orders. Just before the Category 1 cases were due to be heard, the Defender added a second cause of structural stability, that of debonding of the concrete in the roofs, which it claimed had weakened the roofs, leading to possible internal collapse of the roofs. 

[33]      The Defender had taken the decision to serve demolition orders on hundreds of properties throughout the Clune Park estate (and had maintained its position at the hearing of the Category 1 cases), based on inspections of a limited number of properties and on the reports generated from those inspections.  Its principal expert was a civil and structural engineer.

[34]      Having heard evidence in the Category 1 cases, I found that it had not been proved that the Category 1 properties were structurally unstable by reason of corrosion expansion or debonding. For the reasons stated in Ewing v Inverclyde Council dated 18 August 2016 Case Ref B434/14, I found it had not been proved the said properties did not meet the tolerable standard as defined in Section 86 of the Housing (Scotland) Act 1987.

[35]      During the hearing of the Category 1 appeals the Defender’s principal expert appeared to depart from his initial opinion as to the cause of structural instability and appeared to focus on his alternative theory of extensive debonding. The Defender was asked if it wished to depart from its corrosion expansion case, and to proceed simply on the extensive debonding case. The Defender declined to do so. The Defender maintained its position, that because of the effect of corrosion expansion on the properties it was entitled to serve the demolition orders and, that the orders required to remain in place because corrosion expansion of the embedded steel in the roofs ultimately rendered the buildings structurally unstable.

[36]      In relation to the Defender’s case for initially serving the demolition orders, I made several findings in fact in the Category 1 cases. In particular, the information the Defender had regarding the construction of the roof slabs, at the time of serving the demolition orders, was incorrect.  Further, I found that the Defender’s principal expert had not been inside any of the Category 1 appeal properties, or on the roofs of the appeal properties, prior to preparing his first and second reports for the Defender. The Defender had failed to carry out an adequate inspection of the properties prior to taking enforcement action by means of serving the demolition orders, and had proceeded to serve the demolition orders on the basis of speculation on the part of its principal expert. The basis upon which the Defender had proceeded (corrosion expansion of the steel ribs as the cause of movement of the roof slab) was ultimately not supported by its own expert, Mr Turnbull. The theory of extensive debonding had not been considered by the Defender when it first served the demolition orders.

[37]      I found it had not been proved that as at the date of service of the demolition orders, the Category 1 properties were structurally unstable by reason of corrosion expansion or debonding, or by reason of any other factor.  It therefore could not be said the properties were below tolerable standard in terms of Section 86 of the Housing (Scotland) Act 1987 as at the date of service of the demolition orders. I found the Defender was not therefore entitled in terms of Section 115 of the 1987 Act, to serve the demolition orders dated 26 June 2014.

[38]      In the Category 1 cases, I also considered the structural stability of the buildings de novo, as at the date of the hearing. Again, I found it had not been proved that the properties were then currently structurally unstable by reason of corrosion expansion or debonding, or by reason of any other factor. I found it had not been proved the properties were then currently below tolerable standard in terms of Section 86 of the Housing (Scotland) Act 1987. There being no proof the Category 1 properties were then currently below the tolerable standard in terms of Section 86 of the Housing (Scotland) Act 1987, the demolition orders served in respect of the Category 1 properties on 26 June 2014, fell to be quashed.

[39]      The basis for serving the original orders (in respect of the Category 1 properties) has been completely undermined, and it is no longer insisted upon by the Defender. The findings made by the Court in the Category 1 cases undermine the evidence supporting the Defender’s original decision to serve demolition orders. That means there is a vacuum which, if the Defender is insisting it acted correctly in serving the demolition orders in June 2014, requires to be filled with other evidence to support the Defender’s original decision. Without further evidence, it cannot be said there was a proper basis for having served the demolition orders in respect of the Category 3 properties.  It seems to me that the Defender does not seek to provide further evidence to support its original decision to serve the demolition orders in June 2014. On that basis, I am again satisfied, for the reasons set out in my judgment in the case of Ewing v Inverclyde Council dated 18 August 2016 Case Ref B434/14, that the Defender had no proper basis for serving the demolition order on 26 June 2014, in respect of the property at Flat 2/3, 7 Robert Street, Port Glasgow.

[40]      I do require however to consider the issue of tolerable standard de novo, and in doing so consider if the Defender has put forward a case to support its position that the Category 3 properties are currently structurally unstable. The Defender appears to have abandoned its corrosion expansion case and, in relation to structural instability, relies on its claim of there being extensive debonding present within each of the properties. The Pursuers’ position was that as I had found there was no evidence of extensive debonding in respect of the Category 1 properties, that had again created a vacuum, and the Defender had still not filled that vacuum by producing any evidence of extensive debonding in respect of the Category 3 properties.

[41]      One of the main criticisms I had of the Defender’s case in relation to the Category 1 appeals was that the Defender had not inspected any of the Category 1 properties prior to serving demolition orders on them. The Defender had proceeded on the basis of corrosion expansion in respect of the roofs, yet it had not been inside any of the properties or been on the roofs of them. The Defender had simply inspected a very limited number of properties within the Clune Park estate, and had extrapolated its findings in respect of those properties, to all the other properties it had chosen to serve demolition orders on. Even when the Defender changed its position as to the cause of the structural instability in the properties to one of extensive debonding, it did so again on the basis of a very limited inspection of only one of the Category 1 properties.

[42]      Mr Lindsay pointed to the Punch report as now providing evidence of extensive debonding within the roofs of the Clune Park properties, including the Category 3 properties. He said it provided compelling evidence of the structural instability of the properties inspected. Once again, however, the Defender had failed to inspect any of the properties that were before the Court. The Punch report did not refer to any of the Category 3 properties. The Defender was satisfied the properties within the Clune Park estate were structurally unstable and was seeking to provide evidence to show that. It had therefore chosen to thoroughly investigate properties that it owned as it could carry out extensive and intrusive investigations into those properties. The Punch report concluded that the roof structures were likely to be common throughout the estate, and therefore the conclusions as to the stability or otherwise of the roofs inspected could be extrapolated to the other properties within the estate. Mr Lindsay said that those acting for the Pursuers in the various summary applications had decided which properties to bring before the Court as Category 3 properties, and the Defender could not have been aware which properties would be brought back to Court when it conducted its further enquiries. The Defender is aware, however, that the Court has found its decision to serve demolition orders in the Category 1 cases was made on a flawed basis. The Defender is aware that over two hundred demolition orders are being challenged. It is for the Defender to decide how it prepares for those challenges.

[43]      The motion for decree in terms of Crave 1 first called before me on 11 October 2016. It was continued to 1 November 2016, and I understand that during that period the various Pursuers made the four Category 3 properties available for inspection by the Defender. Unfortunately the Defender managed to inspect only one of the four properties, namely Flat 1/1, 25 Robert Street, Port Glasgow. At the second calling of the Pursuers’ motion on 1 November 2016 the Defender produced a spreadsheet headed: “Clune Park Estate – Record of Surveys Oct 2016”, which contained some detail of the inspections. 

[44]      The Defender’s position is that in considering the issue of tolerable standard de novo, I should consider all aspects of the Section 86 factors. The Defender had now sent letters to the Category 3 proprietors detailing in what respects the Defender considered the Category 3 properties fell below the tolerable standard. The Defender’s position was that as there were live issues surrounding the state of the Category 3 properties and whether or not they met the tolerable standard in all respects as detailed in Section 86 of the Act, I could not quash the demolition orders.

[45]      It has to be recognised that the demolition orders were served on the basis that the properties were structurally unstable and therefore below tolerable standard. There was further specification as to what was causing the structural instability. I accept that even if I had found that the basis upon which the demolition orders were served was incorrect, if there was evidence now before me that the properties were now structurally unstable, then in considering the matter de novo, I would be bound not to quash the demolition orders. I do not accept however that I am bound, in considering the matter de novo, to consider all aspects of the tolerable standard as detailed in Section 86 of the Act. When a demolition order is served a proprietor is entitled to fair notice as to the basis on which it is served. If a proprietor proves that the reasons given for serving a demolition order do not render the property below tolerable standard, he does not need, before the demolition order is quashed, to thereafter satisfy the Court that the property meets the tolerable standard in every other aspect of Section 86. If it were otherwise it would mean that a local authority could serve a demolition order on a property without having a proper basis for doing so, and even once that had been shown, the onus would still be on the proprietor to show the property met the tolerable standard in respect of every other aspect of Section 86.

[46]      In the current cases, the Defender has now sent the Category 3 Pursuers letters setting out what it believes are additional failings which in terms of Section 86 render the properties below tolerable standard.  Mr Lindsay accepted that some of those grounds would not in fact in all likelihood entitle the Defender to demolish the properties. I was not given the detail of the further issues raised in those letters, but I understood they were not related to the structural stability of the properties. The original demolition orders for these properties were served due to a belief on the part of the Defender that the Category 3 properties fell below the tolerable standard due to the properties being structurally unstable. The Summary Applications before me challenge the demolition orders and in doing so address the specific reason stated by the Defender for the Category 3 properties’ failure to meet the tolerable standard, i.e., structural instability. The Defender has already altered the reason for claiming that the properties are now structurally unstable, and the Pursuers have also addressed that reason. These proceedings require to proceed in a summary manner. It is not consistent with the principle of summary proceedings that a party can proceed on one basis and then be able to constantly amend and adopt new positions as matters develop. The Defender took a decision to serve demolition orders on the basis that the properties were structurally unstable. Having successfully challenged the Defender’s decision to serve demolition orders on that basis then, unless there is up to date evidence which entitles me to find de novo that the properties are currently structurally unstable (for whatever reason), the Pursuers are entitled to have the demolition orders quashed. In summary proceedings such as this, where the original grounds for serving a demolition order are flawed, it is simply not appropriate to allow the demolition order to remain in place while the local authority carries out further investigations to see if there are fresh grounds to support a case for it to remain in place. If the Defender wishes to pursue those new issues that it has now raised with the Category 3 proprietors, and which appear to have nothing to do with structural stability, then it is free to do so. For the reasons stated, however, those issues form no part of these proceedings

[47]      I now turn to the evidence in relation to structural instability that the Defender relies upon in opposing the motion for decree, and in submitting that the Category 3 properties are currently structurally unstable. The Defender relies upon the report from Punch. That report claims to be a structural report on the roofs of the properties. Seven properties are detailed as being the subject of the report. None of them are the Category 3 properties.  The report makes a number of comments;

Paragraph 10.1: “The roof slabs were all of similar construction, although the standard of construction appeared to vary.”

 

Paragraph 10.4: “The level of corrosion of the bars varied from light to severe…”

 

“The severe dips in profile noted in a significant number of the roofs….”

Paragraph 10.5: “The majority of flats had corroded bars,…”

 

It is clear that the findings over the seven properties inspected are varied. The standard of construction and level of corrosion is varied. Some of the roofs do not have significant dips in profile. Once again the Defender has inspected a limited number of properties and once again seeks to extrapolate its findings across all of the other properties in the Clune Park estate, and in particular at this stage, the Category 3 properties. When this motion first called I expressed my concern that this approach was being taken once again. That approach had not found favour with me during the hearing of the Category 1 cases. I understand that during the period the motion was continued to enable the Defender to consider its submissions in respect of the Pursuers’ motion, the Pursuers had made the properties available for inspection, thereby providing the Defender with the opportunity to present evidence to the Court in relation to the particular Category 3 properties before the Court. When the case called again, I was advised that the Defender had only been able to inspect the roof of one of the four properties, namely Flat 1/1, 25 Robert Street, Port Glasgow. The findings in respect of the various roof inspections were then contained in a spreadsheet dated 31 October 2016, and titled: “Clune Park Estate – Record of Surveys Oct 2016”. That report described some of the findings in vague terms such as: “In many instances…”, “The pattern of deflections on the roof slabs was widespread…”.  There was little specification as to what had been found in relation to each property inspected, and there was no specification as to what had been found in relation to the one Category 3 property that had been inspected.

[48]      I was invited by Mr Lindsay to accept there was evidence that the roofs on a number of the properties in the Clune Park estate were liable to fail at any moment, and therefore were not structurally stable. Mr Lindsay submitted that the evidence showed there was an issue in respect of the Category 3 cases to be determined at a hearing with evidence. The Punch report however states that the construction of the roofs across the estate varies. The levels of corrosion vary. It records at paragraph 10.10: “The future performance of the roofs is impossible to predict, since it is based on a number of factors.” No doubt there will be a number of general factors, but I am sure there will also be a number of factors specific to the individual properties. For that reason I consider it is simply not appropriate to inspect a limited number of properties and then make sweeping generalised comments concerning the structural stability of other properties that have not been inspected.

[49]      The Punch report highlights the problem for the Defender in opposing this motion. At paragraph 11.5 it states:

“The structural integrity and stability of the slabs cannot be verified by calculation due to the standard nature of the materials used in construction, the variation in the standard of the original construction and the varied condition of the slabs. The roofs have clearly failed in many instances, as demonstrated by the severe dips in profile, and it is not possible to predict future performance or longevity.”

 

There is no specific evidence in relation to any of the Category 3 properties as to the standard of construction of the roof slab, or of its current condition. There is no evidence that the roofs of the Category 3 properties have failed.  It is not possible to predict the future performance or longevity of their roofs. I cannot therefore be satisfied that there is a problem with the structural integrity of the Category 3 properties’ roofs.

[50]      The demolition orders in respect of the Category 3 cases have been in place since 26 June 2014. The Category 3 cases were sisted for some time along with many other cases, to enable the Category 1 cases to be heard. Some time has passed since the evidence and submissions were heard in the Category 1 cases. The Defender instructed Punch as long ago as May 2016. The Defender is really no further forward in relation to the Category 3 cases, and if the Punch report is all that the Defender has by way of inspections of the Clune Park estate properties, it may well be it is really not much further forward with many of the other sisted cases.

[51]      The Defender has had ample time to obtain evidence to support its position that the Category 3 properties are structurally unstable. For the reasons stated, I find it has not provided such evidence. As previously stated, these are summary proceedings. It is not appropriate or just to delay the proceedings to enable the Defender to make further enquiry in an effort to secure evidence to support its position. The basis on which the Defender served the original orders was flawed. There is no satisfactory evidence to support a conclusion that these Category 3 properties are currently structurally unstable. It has provided no other evidence to support an alternative theory regarding the Category 3 properties.

[52]      Although the Defender has served several hundred demolition orders in relation to properties within the Clune Park estate, the Court has to consider each individual order. For convenience the parties and the Court have packaged together a number of cases that might have common issues. That does not detract however from the Court’s duty to consider the orders individually in each and every case. It must be remembered that each and every property has an owner, and whilst many of the properties are within the private rented sector, some of the properties will be owner occupied. It simply cannot be the case that the Defender can inspect a property in one area of the estate and use the evidence from that inspection to serve a demolition order on an entirely separate property in another area of the estate. That is so, particularly where the report which the Defender relies upon acknowledges that the construction of the properties vary, the levels of corrosion vary, and the condition of the slabs vary.

[53]      I wish to make it clear once again, that this decision is not a certificate of safety or of structural stability for the Category 3 properties, or for any other properties in the Clune Park estate. Clearly there are significant problems with a number of the properties within the estate. The Punch report makes difficult reading. It states that a significant number of the roofs are significantly overstressed and the future performance of the roofs is impossible to predict. It raises concerns where the roofs might become subject to loading caused by snow. Paragraph 10.5 is particularly disturbing as it states that as the bars corrode, the bearing of the concrete on to the projecting lugs on the flat steel bars will reduce, and at some point failure is likely to occur, with collapse of a section of slab. It goes on to state that the lateral support to adjacent flat bars will immediately reduce and progressive collapse of adjacent slabs is then likely. It is not difficult to imagine that if that scenario was to occur there may well be catastrophic consequences. If the Defender believes this type of scenario is likely within any of the roofs not already inspected, one would hope that urgent steps are taken to properly investigate the structural integrity of each of the roofs that might be so affected.  I was informed by parties that the Defender does have statutory powers to take steps to thoroughly inspect properties where there is a concern regarding their safety and/or structural stability. It would be hoped that whatever authority the Defender has, that it uses that authority to ensure that the sort of potential tragedy as set out in the Punch report does not occur.

 

Decision

[54]      I allow the Pursuers’ motion. I sustain the Pursuers’ First plea in law; repel the Pursuers’ Second plea in law, and in doing so quash the demolition order in respect of the property at Flat 2/3, 7 Robert Street, Port Glasgow. I repel the Defender’s First, Second, Third and Fourth pleas in law, and meantime assign 21 November at 10.00 am as a hearing on the question of expenses.