Judicial Review Of A Decision By Aberdeen City Council As Roads Authority Dated 6 March 2018 In Respect Of Bridge Street, Aberdeen
| Jurisdiction | Scotland |
| Judge | Lord Woolman,Lord Brodie,Lord Justice Clerk |
| Neutral Citation | [2020] CSIH 41 |
| Date | 10 July 2020 |
| Docket Number | P571/18 |
| Court | Court of Session |
| Published date | 10 July 2020 |
SECOND DIVISION, INNER HOUSE, COURT OF SESSION
[2020] CSIH 41
P571/18
Lord Justice Clerk
Lord Brodie
Lord Woolman
OPINION OF THE COURT
delivered by LORD BRODIE
in the Petition of
McCALLS LIMITED
Petitioners and Reclaimers
against
ABERDEEN CITY COUNCIL
Respondents
for
Judicial Review of a decision by Aberdeen City Council as roads authority dated 6 March
2018 in respect of Bridge Street, Aberdeen
______________
Petitioners and Reclaimers: Cormack QC (sol adv); Pinsent Masons LLP
Respondents: Burnet; Morton Fraser LLP
10 July 2020
Introduction
[1] This is a reclaiming motion against the Lord Ordinary’s refusal of a petition for
judicial review. The issue it raises is the scope of the duty imposed on a roads authority by
section 1(1) of the Roads (Scotland) Act 1984.
2
[2] The petitioner and reclaimer is a limited company. It is in the business of selling and
hiring high quality Highland wear and related goods. It trades from premises made up of
adjoining subjects at 11, 11A, 15, 17 and 19 Bridge Street Aberdeen, 2-4 and 6 Windmill Brae
Aberdeen and 2-6 College Street, Aberdeen ("the Premises"). Part of the Premises is located
within the vaults formed by the arches of the bridge structure which makes up Bridge Street,
Aberdeen ("the Bridge") and carries the public road. Windmill Brae runs underneath the
Bridge. Bridge Street runs uphill from the vicinity of the railway station to its junction with
Union Street. It is understood that the Bridge was built by a railway company to facilitate
access to the station. The petitioner is the proprietor of part of the subjects forming the
Premises. The remaining parts are owned by Iain and Kathleen Hawthorne, who are
averred to be the petitioner's “principals”. Although the relevant titles have been examined,
neither the petitioner nor the respondent has been able to identify the present owner of the
arches of the Bridge.
[3] Parts of the Premises have suffered the ingress of water. The petitioner maintains
that this is because the respondent, Aberdeen City Council, the roads authority, has failed
duly to carry out its duty under section 1 of the 1984 Act, to maintain Bridge Street. The
petitioner claims standing, as the owner and occupier of property which is being adversely
affected by this failure, to seek certain remedies with a view to compelling the respondent to
implement its duty.
Petitioner’s averments on water ingress
[4] The petitioner avers that for a considerable period of years, the part of the Premises
located within the vaults has been subjected to high levels of water ingress and that there is
a considerable body of evidence that this water is coming down through the structure of the
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