K2 Restaurants Limited V. Glasgow City Council
| Jurisdiction | Scotland |
| Judge | Lady Smith,Lord Brodie,Lord Menzies |
| Neutral Citation | [2013] CSIH 49 |
| Court | Court of Session |
| Docket Number | A5093/01 |
| Published date | 05 June 2013 |
| Date | 08 May 2013 |
| Year | 2013 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord Menzies Lady Smith Lord Brodie | [2013] CSIH 49 A5093/01 OPINION OF THE COURT delivered by LORD BRODIE in the Reclaiming Motion by K2 RESTAURANTS LIMITED Pursuers and Respondents; against GLASGOW CITY COUNCIL Defenders and Reclaimers: _______________ |
Pursuers and Respondents: Murphy QC, McBrearty; Brodies LLP
Defenders and Reclaimers: Geoff Clarke QC, B Smith; DAC Beachcroft Scotland LLP
(for Charles Hennessy & Co, Solicitors, Glasgow)
8 May 2013
Introduction
[1] The pursuers and respondents are a company incorporated under the Companies Acts, which at all relevant dates have been the proprietors of ground floor and basement premises at 225/235 North Street, Glasgow where they carry on business as restaurateurs, trading as the Koh I Noor. In this action, raised in 2001, they sue in respect of physical damage to their premises caused by a partial collapse of neighbouring premises at 237/239 North Street which collapse occurred on 6 November 1996. Originally two defenders were sued, first, Glasgow City Council, and, second, CMI (Contractors) Limited ("CMI"), a demolition company. However, on 21 December 2005 CMI were assoilzied of consent and the case proceeded to proof only as against the first defenders, Glasgow City Council.
[2] The pursuers' case against the first defenders is one of negligence at common law in the planning and carrying out of the demolition of the first, second and third storeys of the then tenement building of which the pursuers' premises formed the ground floor and basement. The demolition operations were carried out over a period of about ten weeks commencing in July 1996, under the supervision of the first defenders' Director of Building Control. They were consequential upon the service by the first defenders of notices under section 13 of the Building (Scotland) Act 1959, as amended.
[3] Following proof, the Temporary Lord Ordinary found that the first defenders had failed in their common law duties of care towards the pursuers. In terms of an interlocutor dated 18 October 2011, having repelled a plea of prescription she granted decree against the first defenders in respect of an agreed sum of damages. The first defenders have reclaimed.
Building (Scotland) Act 1959 section 13
[4] In serving notices and carrying out operations the first defenders were acting under powers conferred by section 13 of the Building (Scotland) Act 1959, as amended by the Local Government (Scotland) Act 1973 and now repealed. Section 13 provided, inter alia:
"13 Action to be taken in respect of buildings found to be dangerous.
(1) If it appears to the local authority that any building is dangerous to persons inhabiting or frequenting it or adjacent buildings or places or to the public generally they shall forthwith-
(a) require any occupants of the building in question, and of any adjacent building, being persons whom they consider to be endangered by the state of the building in question, to remove immediately from those buildings;
(b) cause to be executed such operations (including, if necessary, demolition operations) as in their opinion are necessary for preventing access to the building and any adjacent parts of any road or public place which appear to them to be dangerous by reason of the state of the building and otherwise for the protection of the public and of persons and property on the land adjacent to the building; and
(c) serve on the owner of the building a notice requiring him within a period of seven days from the service of the notice to begin, and within such further period as may be specified in the notice, being a period of not less than twenty-one days from the expiration of the first mentioned period, to complete to the satisfaction of the local authority, such operations for the repair, securing or demolition of the building as may be so specified, being operations necessary in the opinion of the local authority to remove the danger.
(2) If on the expiration of the period of seven days referred to in paragraph (c) of the foregoing subsection the owner of the building has not begun, or if on the expiration of the period of not less than twenty-one days so referred to he has not completed, the operations required by a notice given under that paragraph the local authority, after giving the owner and any other person appearing to them to have an interest an opportunity to be heard, may make an order requiring the owner to execute the said operations within such period as shall be stated in the order.;
...
(4) If an order under subsection (2) above is not duly complied with, the local authority may execute the operations which the owner has failed to execute or demolish the building.
(5) Any expenses incurred by a local authority in executing their functions under this section in respect of any building, shall, subject to the provisions of section seventeen of this Act, be recoverable by the local authority from the owner of the building as a debt; ..."
The relevant operations
[5] As at 17 August 1994 the pursuers' premises formed part of a traditional four storey tenement block, constructed in about 1900, and situated on the west side of North Street, Glasgow. The title to the tenement block indicated that it comprised numbers 225 to 239 North Street. The façade of the pursuers' restaurant ran (south to north) at ground floor level from numbers 225 to 237 North Street. The first, second and third storeys above the pursuers' premises were divided into flatted accommodation. There were twelve flats, title to which was held by an Isle of Man company, Greenford Properties Limited. The first, second and third storeys were in a state of disrepair.
[6] By notice in terms of section 13 of the 1959 Act dated 17 August 1994 and served on Greenford Properties and Mr Rusal Tahir, as owners of the building at 229, 235 and 236 North Street, Glasgow, the first defenders stated that it appeared to them that the building was dangerous and required the owners to carry out certain building operations or alternatively to demolish the building to the upper surface of the first floor joists. A similar notice, dated 1 September 1994, was served on Greenford Properties and Mr Rusal Tahir in respect of 229, 235 and 236 North Street, as was a further similar notice dated 7 September 1994 in respect of 229 and 235 North Street. As the persons identified by the first defenders in these notices as the owners of the building had not begun the specified building operations the first defenders served a notice dated 28 September 1994 of their intention to make an order in terms of section 13(2) of the 1959 Act.
[7] Having ascertained the proper designations of the owners of the building at 229 and 235 North Street, the first defenders served a further notice in terms of section 13 in respect of that building on Greenford Properties Limited and the pursuers. That further notice was dated 25 January 1995 and required the owners to carry out certain building operations or alternatively to demolish the building to the upper surface of the first floor joists. The owners not having carried out these operations, the first defenders served a notice dated 8 September 1995 on Greenford Properties Limited and the pursuers in terms of section 13(2) of the 1959 Act. Neither Greenford Properties Limited nor the pursuers carried out the operations specified in the notice of 8 September 1995. Accordingly, as is a matter of admission in the pleadings, by virtue of section 13 (4) of the 1959 Act the first defenders were authorised and entitled to demolish that part of the tenement building at 229 and 235 North Street above the pursuers' premises.
[8] On 19 June 1996 the first defenders contracted with CMI for the carrying out of the demolition of the first, second and third storeys of the part of the tenement building at 229 and 235 North Street above the pursuers' premises. The contract appointed the first defenders' Director of Building Control as chief supervising officer for the works. CMI carried out these works in July 1996 and subsequently. As it is put by the first defenders in the note of argument they lodged prior to the hearing of the reclaiming motion and repeated in the written submissions by junior counsel which were provided to the court, the effect of this demolition operation, once completed, was twofold: (i) to remove the tenement flats that had previously been above the pursuers' restaurant premises, above which a new roof was to be built, and (ii) to expose what had formerly been an internal division wall which consequently became the outer gable wall of that part of the building constituted by the tenemental flats at 237 to 239 North Street. The division wall contained chimney flues and was topped by coping stones and a chimney head.
The collapse and consequent damage
[9] On 6 November 1996 in adverse weather conditions including high winds, a portion of brickwork forming part of the former internal mutual division and chimney flues in that wall was blown down. The brickwork collapsed through the roof of the pursuers' premises causing the damage in respect of which the pursuers sue and which has been quantified at an agreed sum.
[10] The reason for the collapse was the action of wind forces on a wall which the Temporary Lord Ordinary found lacked stability following the works carried out by the first defenders. These works exposed what had been an internal mutual division wall. As was demonstrated by an inspection of the wall on 15 November 1996 by a chartered building surveyor, Andrew Lightbody, the bricks and mortar of the wall suffered from expansion, erosion and crumbling due to sulphate attack. The demolition of the first, second and third storeys of the building at 229 and 235 North Street, as well as exposing the wall to wind forces, had deprived the wall of lateral support. The wall was not tied-in to the building at 235...
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