Scottish Sheriff Court Decisions

(B428/05)

JUDGMENT OF

SHERIFF PRINCIPAL EDWARD F BOWEN QC

in the appeal

in the cause

THOMAS T GARDNER

Pursuer and Appellant

against

THE CITY OF EDINBURGH COUNCIL

Act: Party

Alt: Clarke, Solicitor, City of Edinburgh Council

EDINBURGH, 6 OCTOBER 2006

The Sheriff Principal, having resumed consideration of the cause, refuses the appeal and adheres to the Sheriff's interlocutor complained of dated 13 February 2006; finds the pursuer and appellant liable to the defenders and respondents in the expenses occasioned by the appeal and remits the account thereof, when lodged, to the Auditor of Court to tax and to report thereon.

NOTE:

1. This matter comes before the Court by virtue of the terms of section 28 of the City of Edinburgh District Council Order Confirmation Act 1991. In terms of that section any person aggrieved by the requirement of a notice served under Part IV of the Order may appeal to the Sheriff. The pursuer occupies a flat at 145 Bruntsfield Place, Edinburgh. On 15 August 2005 the defenders served on him, and other occupants, a Notice in terms of section 24(1) of the Order requiring remedial works described as "repair/replace defect mutual elements of door entry phone system" at 143, 145 and 147 Bruntsfield Place. The pursuer appealed to the Sheriff who, following a hearing, rejected his appeal and confirmed the defenders' decision by interlocutor dated 13 February 2006.

2. Before turning to the full circumstances giving rise to the appeal it is appropriate to deal with the pursuer's first ground of appeal which is in the following terms: "Although set down for a proof the Sheriff did not conduct a proof, which it is believed by the pursuer to be to his disadvantage for the defender produced no evidence to support his (sic) assertions". In respect of this ground of appeal it is to be noted that what was assigned (in terms of an interlocutor dated 10 October 2005) was a "hearing" not a proof. The Sheriff nevertheless indicates that the case was set down for a proof, and proper practice in a summary application of this nature appears to require that a Sheriff should determine at the first calling of a case whether the hearing is to take the form of a debate or proof and this should be specified in the interlocutor (see Macphail Sheriff Court Practice 2^nd Ed paragraph 25.24). In the present case any departure from proper practice appears to have been inconsequential because, as indicated by the solicitor appearing for the defenders and respondents, a number of factual matters were agreed between him and the pursuer which are now recorded in the Sheriff's Note. I am satisfied that on the facts as presented to him the Sheriff was in a position to determine the matter summarily as he was required to do in terms of section 50 of the Sheriff Court (Scotland) Act 1907.

3. Whilst the form of hearing was to some extent at the discretion of the Sheriff he was bound to adhere to the rules of nature justice. That involved giving the pursuer a proper opportunity to state his case. In point of fact what the pursuer complains of in terms of the first ground of appeal is that "the defender produced no evidence to support his (sic) assertions". This overlooks the fact that it was for the pursuer to satisfy the Sheriff that the defenders' decision was unlawful, and it would have been perfectly possible for the defenders to succeed without having led any evidence at all. Be that as it may, when I came to examine the facts as recorded by the Sheriff with the pursuer it appeared that there was very little he disagreed with. Certain events may have come about because of what he described as "untruths" but it is difficult to see that an investigation into these would either have been relevant to the Sheriff's decision or likely to affect the decision itself. In all these circumstances I am satisfied that there is no merit in the first ground of appeal.

4. I now turn to the factual background giving rise to the appeal. This is recorded in paragraphs 6 to 14 of the Sheriff's Note. It appears that repairs were carried out to the property in which the pursuer resides in terms of a Repairs Notice served by the defenders or their predecessors in terms of section 108 of the Housing (Scotland) Act 1987. That Repair Notice was the subject of an unsuccessful appeal by the pursuer to the Sheriff. Further work was carried out on the property in terms of a common repair scheme. These repairs fell outwith the scope of those required under the section 108 Notice. The repairs included installation of a new entry phone system which replaced the traditional mechanical latch key system. This was again the subject of litigation at the instance of the pursuer, in this case an action of interdict raised in the Sheriff Court which ultimately proceeded to the Inner House of the Court of Session. At that stage the works had been carried out and the appeal was refused on the basis that it was too late for any interdict. Thereafter the entry phone system was installed in early 1999. It appears to have worked only for a short period of time but has not worked since, with the consequence that free entry to the common stair has been available for at least six years. Paragraph 13 of the Sheriff's Note records that the pursuer's co-proprietors wanted to have the entry phone system repaired and have sought agreement which is not forthcoming from the pursuer. In the light of that they approached the defenders who have served the Notice requiring the proprietors, including the pursuer, to renovate the defects in the door entry system.

5. As the pursuer indicated the basis of his case is that the entry phone was fixed illegally and in consequence it is not lawful for the defenders to require its repair. He contended that paragraphs 3 to 8 of his grounds of appeal set out the reasons for asserting that the entry phone was fixed illegally. Some of these, I am bound to say, are extremely difficult to understand. Paragraph 3 contains the assertion that the entry phone system was illegal because it did not fall within the repairs required by the original section 108 Notice. It is not in dispute that the entry phone did not fall within the terms of that Notice; it fell within the scope of the common repair scheme for which grant approval was obtained under section 236 of the Housing (Scotland) Act 1987. That is referred to in paragraph 4 which appears to contain the suggestion that the work should not have qualified for a grant because it did not constitute an improvement. Even if that were to be correct it would only result in the payment of the grant being unauthorised, not the installation of the system itself. There are references to the Court of Session proceedings and an assertion that "if the pursuer's action had been within time then it is probable that it would have succeeded in the Inner House". That is entirely speculative; there is no doubt that the decision of the Inner House was based on the view that it was too late to grant interdict for works already carried out. No opinion was expressed on whether the works were lawful and that decision has no direct bearing on the questions raised in the present proceedings.

6. In any event whether the installation of the entry phone system was in some way tainted with irregularity may not matter because the solicitor for the defenders submitted that it was unnecessary for the Court to conduct an examination of how the entry phone came to have been installed. Whilst the situation might have been different if the defenders themselves had been responsible for an illegal installation there could be no suggestion of that. The entry phone was there by virtue of the common repair scheme agreed by the majority of the proprietors the defenders were entitled to require its repair provided the circumstances fell within the scope of section 24.

7. I accept that submission but it does raise what I consider to be the one point of some difficulty in the case which was not argued by the pursuer, namely whether repairs to a door entry system which may be required through defective installation can properly be said to fall within the scope of section 24(1) of the 1991 Order. That sub-section provides that: "When from decay, or in consequence of storm or otherwise, the structure of any part of any building or anything affixed to any building, or any wall or fence connected with, or pertinent to, a building (including any part thereof so formed or maintained as to allow satisfactory drainage of its surface or subsoil to a proper outfall) has become insecure, worn out, or damaged or is in need of repair, the Council may, by Notice, require the owner of such building to execute any works necessary for securing, restoring or repairing such structure, fixture, wall or fence". It is to be noted that section 108(1) of the Housing (Scotland) Act 1987 which confers power on local authorities generally to secure repair of houses provides that power only where the authorities are satisfied that any house in their district is in a state of "serious disrepair". The issue of Repairs Notices in that setting is familiar, but a question must arise as to whether section 24(1) was intended to provide much wider powers, and whether it can be read as covering an installation in a building such as an entry phone system, particularly in a situation where that system appears to have worked for only a short time following its installation.

8. In the absence of submissions from the pursuer on that issue I have considered the matter carefully. I have come to the conclusion that the terms of section 24(1) are apt to cover the situation which has arisen in the present case. As a matter of general approach there is no obvious reason why power should not be given to a local authority to require repairs which may render a building secure. Equally there is no reason why repairs should not be required in respect of a defect which has been caused not by natural deterioration but by some deficiency at the time of installation. The words "or otherwise" in the opening phrase of the sub-section can only fall to be regarded as restrictive on the basis of the operation of the ejusdem generis rule of interpretation. That rule operates to restrict the meaning of a general term where it follows words which have some common or dominant feature. In my judgment the words, "decay, or in consequence of storm" do not have a common feature such as to provide ground for limiting the generality of the words "or otherwise". The remaining terms of the provision are clearly of a very wide nature, covering as they do the structure of any building or anything fixed to it, and requiring "securing, restoring or repairing" where the item has become inter alia damaged or in need or repair. In my judgment the Sheriff was right to hold that the defective door entry system falls within the terms of these provisions.

9. In the whole circumstances I am satisfied that the appeal against the Sheriff's decision falls to be rejected and his decision to uphold the decision of the defenders affirmed.

(signed) EFB