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OUTER HOUSE, COURT OF SESSION
[2007] CSOH 162
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OPINION OF LADY
DORRIAN
in the cause
PS PROPERTIES (2) LIMITED
Pursuer;
against
CALLAWAY HOMES
LIMITED
Defender:
ญญญญญญญญญญญญญญญญญ________________
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Pursuer:
P. Davies; Harper Macleod
Defender: McLean;
Campbell Smith
4 September 2007
[1] This
case came before me on 4 September
2007 on a motion for recall of interim interdict. Interim interdict had been granted on 24 August 2006, interdicting the
defenders or anyone on their behalf from proceeding to carry out certain
structural work to the common stair of the tenement building 53 Murray
Place, Stirling. The property in question is a tenement
building comprising both commercial and domestic premises. The pursuers'
properties are described on record as ". . . a shop at 49/51 Murray
Place, Stirling ("the first shop"); and
a shop at 55 Murray Place, Stirling ("the second shop")." The first shop is let to tenants
(Poundstretcher), while the second shop is vacant. At the time of the interim interdict the
defenders were proprietors of the top left flat and the top right flat in the
tenement. The two second floor flats
were, at the time, in private hands.
[2] This
dispute arises from proposals to carry out structural work in the common stair
of the property. A certain amount of
temporary, remedial work was carried out during 2005 and a report prepared by
structural engineers dated 13 September
2005. That report records
that the temporary, remedial work was carried out to remove any doubt over the
immediate stability and safety of the stair.
They then made proposals for permanent repair to be carried out. A Notice seeking agreement to a Scheme
Decision under the Tenements (Scotland)
Act 2004 was served on 16 May 2006
by the defenders' agents on the pursuers and other proprietors within the
tenement. It appears (7/2) that
Poundstretcher were agreeable to the remedial work being carried out and to
bearing the 2/6 share of costs which would fall on the pursuer. However, it was the consent of the pursuers,
as proprietors, which was required. The
pursuers refused to give this consent.
Consent was given by the proprietor of the second floor right on 29 May 2006. On 24 May
2006 the pursuers wrote to the defenders (6/9) indicating that they
were concerned about the deteriorating state of the common stair. They were proposing refurbishment of the
retail units and, at the same time, made proposals which would involve the
relocation of the entrance passageway so that the access to the tenement,
presently through a common close entered from the front of the building, would
be by way of a relocated common closed entered from the right hand side of the
building. The defenders were unwilling
to agree to this proposal. In or about
June 2006 the pursuers were in negotiation with the proprietors of the second
floor flat, with a view to purchasing those flats. Offers to purchase those flats were made and
agreed in principle. On 4 August 2006 the defenders'
agents wrote to the pursuers advising that they understood that if the work
were not carried out, Stirling council would serve a
Repairs Notice which would involve additional expense. They further advised that their clients ". .
. had now come to the view that the work really has to be carried out under the
powers available within the Tenements (Scotland)
Act 2004 to carry out emergency works where these are in the interests of
health and safety. They have
now instructed Alexander Scott (Consulting Engineers) Ltd, who were involved
in the initial propping up of the staircase, to commence the necessary
work". Work was thereafter commenced in
line with the proposals in the Scheme Decision.
So things stood at the time when interim interdict was granted on 24 August 2006.
[3] When
the matter came before me for recall of interim interdict matters were slightly
different. The proprietor of the other
second floor flat had accepted the Scheme Decision on 3rd September 2006. Morover, the
pursuers' offers to purchase the second floor flats had come to nothing,
apparently through difficulties of funding.
The offers to purchase were withdrawn in January 2007 and the flats
subsequently sold to the defenders, who now own all four residential properties. On 29 March
2007 the pursuers intimated that they no longer wished to proceed
with the relocation of the entrance close.
They were asked if they would now be willing to agree to the completion
of the Scheme Decision works. By letter
dated 19 April 2007
(7/18) their agents advised that they were carrying out further investigations
relating to ". . . the structure and dilapidation of the building as a whole
which impact greatly on the stairs."
They suggested that ". . . repairs to the stairs would be pointless if
the rest of the building remained in such a state of dilapidation. Clearly, all repairs to the building need to
be carried out in a structured manner."
[4] It
was in these circumstances that the motion for recall of interim interdict was
enrolled. The pursuers marked opposition
to that on the basis that "the works proposed by the defenders are insufficient
to repair the tenement at 49 to 55 Murray
Place to the standard that is required. The works proposed by the defenders are of a
temporary nature and would ultimately still leave the tenement in an unsafe
state."
[5] The
defenders' primary argument was based on their understanding of the Tenements (Scotland)
Act 2004. That act (section 4 and
schedule 1) provides for a Tenement Management Scheme. Rule 1.4 of schedule 1 provides that
a decision is a "Scheme Decision" if made in accordance with rule 2. Rule 2.5 provides for a Scheme Decision to
be made by a majority of all the votes allocated. Rule 2.2 provides that for the purpose
of voting on any proposed Scheme Decision one vote is allocated as respects
each flat. Section 29(1) provides
that "flat" includes "any premises, whether or not -
(a)
used or intended to be used for residential purposes; or
(b)
on the one floor;"
The
defenders submitted that the majority of votes having been cast in favour of
the Scheme Decision, they had a strong prima
faci case for recall of the interim interdict. Turning to the balance of convenience, their
argument is largely that which is averred on pages 23 and 24 of the reclaiming
print. They drew attention in particular
to the fact that the work carried out in 2005 had always been anticipated to be
temporary. Reference was made to the
local council's position as disclosed in an e-mail of 30 August 2006 in which it was indicated
that the reason a dangerous building notice had not been served was that the
temporary work had been undertaken. That
solution had been permitted by the council on the understanding that permanent
repair would follow and that if no progress were made towards that the council
would consider an enforcement notice.
However, it has to be noted that no such notice has, in fact, been
served. Council also relied on reports
7/19 and 7/21 from consulting civil and structural engineers in relation to the
state of the building. 7/19, a report of
May 2007, noted that the remedial works were, in fact, eighty per cent
completed and suggested that the interdict was ". . . potentially harmful by
delaying unduly the repair works . . .".
7/21 is a further letter from them dated 2 August 2007 which referred to recent forced
entry and subsequent vandalism at the property resulting in ". . . significant
damage to the interior of the second floor flats, including structural damage,
this intrusion further highlights the continued risk to the structural fabric
of the property as a whole, specifically through fire, vandalism, or further
significant structural damage arising from any deliberate interference with, or
acts of vandalism undertaken against, the existing temporary propping system to
the main stairway, such attempts having already taken place following the
recent break in." The report
7/19 of process also observed that there was no structural reason why any
works which were planned for the ground and first floor levels could not be initiated
and undertaken independently of the works on the upper stairway.
[6] In
response, counsel for the pursuers did not primarily reply on the opposition as
noted in the motion sheet. Rather his
position was that, in the first place, there was no Scheme Decision and, in the
second place, the works anticipated were not urgent.
[7] In
relation to the first of these points, his argument was that rather than
consisting of six units, as claimed by the defenders - four domestic properties
and two shops - the property consisted of eight units. These units were effectively six domestic
flats, two on each floor and the two shops at ground floor level. In spite of the fact that "the first shop"
consists of the ground floor and the whole of the first floor and is described
in the title sheet as "the shop on the ground and first floor and the toilets
on the landing", this property in fact had to be looked at as three flats for
the purposes of section 29 of the Tenements (Scotland) Act 2004. Counsel submitted that one had to look at the
original purpose for which the building was designed, not the way in which it
was now divided up. The property was
designed as a traditional tenement of eight units which meant that five votes
were required to form a majority. He
relied on section 26 of the Tenements (Scotland)
Act 2004 which sets out the meaning of "tenement" in subsection 1 as
meaning ". . . a building or a part of the building which comprises two related
flats which, or more than two such flats at least two of which -
(a)
are, or are designed to be, in separate ownership; and
(b)
are divided from each other horizontally,
and, except where the context
otherwise requires, includes the solum and any other land pertaining to that
building, or, as the case may be, part of the building and the expression
"tenement building" shall be construed accordingly." Counsel submitted that under reference to
section 26(1)(a) the tenement required to be viewed as a building of eight
units.
[8] As
to the remainder of his submission, counsel argued that the works which were
proposed by the defenders were neither useful nor urgent. The emergency work which was in place was
sufficient for present purposes. The
pursuers did propose that other work be carried out to the tenement and there
was no pressing urgency for the work which the defenders wished to have carried
out. He submitted that the pursuers were
seeking to maintain the status quo until any dispute over the extent of
remedial work was resolved. Recall of the interim interdict would, in effect,
bring an end to the dispute as to how the work proposed by the defenders would
be carried out.
[9] I
did not accept the pursuers' submission that the building required to be looked
at as a building of eight units. I did
not accept that one had to look at the historical design of the building for
the purpose of determining how many votes were to be allocated in terms of
rule 4 of schedule 1. In my
view, the building was properly to be considered, having regard to the titles
and section 29, as a building of six units. It follows that the defenders have a majority
in favour of the Scheme Decision. The
work is eighty per cent completed and does not appear clash in any way with
remedial work of a different kind proposed by the pursuers. The longer the work is left uncompleted the
greater the risk to the building, not only from the passage of time, but from
the incursion of vandals, as has recently been the case. Accordingly, I recalled the interim
interdict.
