Gardner v Edinburgh District Council
| Jurisdiction | Scotland |
| Judgment Date | 07 June 1991 |
| Docket Number | No. 44. |
| Date | 07 June 1991 |
| Court | Court of Session (Inner House - Second Division) |
SECOND DIVISION.
Local governmentStatutory interpretation"Building"Rectification of defects in buildingSpecification of defectsLimit to which local authority ought to specify defectsWhether local authority entitled to require owner of building to rectify defects without specificationCivic Government (Scotland) Act 1982 (cap. 45), sec. 87 (1) and 105 (b).1
A local authority served upon the owners of premises in Bruntsfield Place, Edinburgh, a notice which bore to require them to carry out certain work on rhones and roof pipes situated at those premises. The notice purported to be served in exercise of powers conferred on the authority by sec. 87 (1) of the 1982 Act, was headed "Buildings in need of repair" and read as follows:"I hereby require you within 28 days from this date to rectify the defects as detailed in the schedule below at 143, 145, 147 and 147A Bruntsfield Place". The schedule was in the following terms:"Clean out entire rhones and roof pipes. Renew where found defective." One of the owners appealed to the sheriff and argued that the notice was invalid because the nature of the works specified was not such as entitled the local authority to issue a requirement under the provisions of sec. 87 (1); and that since he was not the owner of the building in which the specified defects were situated, the notice should not have been served on him. The sheriff allowed the appeal and held that the requirement appealed against was of no effect on the basis that the notice failed adequately to specify the defects which required rectification. The sheriff rejected the appellant's other contentions and the appellant thereafter appealed to the Court of Session. The local authority also appealed on the ground that the sheriff had erred both in law and in the exercise of his discretion.
Held, (1) that sec. 87 (1) of the 1982 Act clearly obliged the local authority to specify in some way the defects which required rectification, and the degree of specification required for this purpose would vary according to what was reasonable in the particular circumstances of the case; (2) that where a defect was alleged to result in the overflowing of pipes which drained the roof of a building it might be reasonable, in certain circumstances, to ascribe the overflow to the condition of the whole pipework rather than to any particular pipe or pipes but, so far as could be ascertained from the pleadings in this case, that was not the situation in the present case, for the letter of complaint founded on by the local authority referred to only a single gutter at the rear of 147 Bruntsfield Place, the appellant owning only 145 Bruntsfield Place, and, in the absence of any contrary indication, it was at least possible that the trouble was associated only with the blockage of that gutter; (3) that if that was the extent of the defect, it was quite unreasonable that it should be specified by including
reference to the numerous other pipes serving the drainage of the roof of all the specified premises; and, accordingly, (4) that the sheriff had been correct in stating that the notice was invalid because it failed sufficiently to identify, by its location, the defects which the owners were required to rectify; and local authority's appealrefusedOpinion, (followingSmith v. Giuliani 1925 S.C. (H.L.) 45 and City of Edinburgh District Council v. GardnerUNK 1990 S.L.T. 600) that the appellant was the "owner of a building" in terms of sec. 87 (1) of the 1982 Act in relation to defects in the rhones and roof pipes thereof in which he had a common interest.
Thomas Gardner brought a summary application in the sheriffdom of Lothian and Borders at Edinburgh appealing against a notice served upon...
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