Scottish Sheriff Court Decisions

SHERIFFDOM OF LOTHIAN & BORDERS Case Number: SA932/10
	Judgment by SHERIFF PRINCIPAL MHAIRI M STEPHEN In the cause MR JOHN HUNTER Pursuer & Appellant; against MRS HELEN TINDALE Defender & Respondent: ____________________________

Act: Hunter Appellant

Alt: Trotter for Respondent

EDINBURGH, 22 July 2011

The Sheriff Principal, having resumed consideration of the cause answers the first second third and fourth questions in the affirmative; declines to answer the fifth question as unnecessary and allows the appeal: finds the Defender and Respondent liable to the Pursuer and Appellant in the sum of £677 together with interest at the rate of 8% from the date of citation until payment; finds the Defender and Respondent liable to the Pursuer and Appellant in the expenses of the small claims procedure to include the appeal procedure and finds the Pursuer and Appellant entitled to expenses of £150.

(signed) Mhairi M Stephen

NOTE:

1. This is an appeal by stated case from the decision of the Sheriff following a small claims hearing on 28 September 2010. In a written judgment of

19 October 2010 the Sheriff assoilzied the Defender from the Pursuer's claim against her and awarded expenses of £75 to the Defender.

2. Both parties are party litigants. Mr Hunter, Pursuer and Appellant, presented the appeal and Mr Trotter appeared for the Defender and Respondent, Mrs Helen Tindale.

3. At the outset I should record that difficulties did arise with regard to the facts which are said to be "agreed facts". In particular, the Appellant took issue with certain findings in fact and indeed suggested a site inspection to clarify these matters. Clearly this is an appeal on a point of law and it is inappropriate to revisit the facts at this stage. It is however, reasonable to suggest that there was agreement that there is a door leading from the rear of No 125 Constitution Street into the area of the pend immediately behind the flats. There was a dispute as to whether the occupants of the flat had any right of access through or across the pend to that door but it is accepted that the door leading from the flats at 125 Constitution Street opens directly on to the pend or the landing which is described in the Sheriff's judgment and stated case.

4. Furthermore, although Mr Hunter raised questions of fact he accepted that he had not proposed or suggested adjustments to the Sheriff's draft stated case at the appropriate time. Given the basis for the Appellant's claim the issue in this appeal involved the analysis and interpretation of the Tenements (Scotland) Act 2004 and the parties who were not legally represented presented only rudimentary argument as to how the statute applies to the dispute between the parties.

5. Likewise, the Sheriff who heard the case at first instance was presented with rather unfocused legal submissions on the interpretation of the Tenements (Scotland) Act 2004 (hereinafter referred to as "the Act") although curiously it appears from the Sheriff's judgment and stated case that the submissions and thereafter his decision turned on the definition of a "close" in terms of the Act.

Grounds of Appeal and Submissions

6. The first ground of appeal relates to matters of fact and law on the issue of whether the pend at 123 Constitution Street, Edinburgh came within the definition of "close".

7. Grounds of appeal 2 and 3 raise issues of law which appear to have direct relevance to the legal proposition on which the Pursuer and Appellant's claim is based albeit that in the stated case the Sheriff comments that he was not referred to paragraph (c) of section 29(1) of the Act. The Appellant accepted in his submissions that he did not refer to the word "sector" during the hearing before the Sheriff but nevertheless submits that section 29(1) which is the interpretation section is relevant in its entirety and that "the pend" is an area within the tenement which attracts liability for a share of all common repairs having regard to the terms of Section 8 of the Act.

8. The Appellant repeated his submission that section 8(1) of the Act imposes an absolute duty on the owner of any part of the building to maintain the supporting or sheltering part so as to ensure that it provides support or shelter. He submits that the Sheriff misdirected himself by failing to take account of that part of the act in particular the interpretation section which provides assistance regarding this matter (section 29(1)"sector"(c)). The Appellant contends that the subsection allows for any other three dimensional space not comprehended by a flat, close or lift to be a "sector".

9. I was referred to a recent statutory notice by the City of Edinburgh Council relating to the entire building which bore to confirm that a copy of the notice had also been sent to the respondent at 123 Constitution Street.

10. To summarise the Appellant submitted that the building was one complete building consisting of 121, 123, 125 Constitution Street and that pend or close No 123 gives access to No 125, the basement workshop and the rear basement entrance to 121.

11. Further, the Appellant contended that the Sheriff did not fully comprehend that the building was an integral one piece and could not be separated and therefore the pend is both part of the whole and giving access to other parts.

12. Reference was made to the deteriorating state of the stonework which had required to be repaired. Had that stonework come loose and fallen from its pediment it would have fallen on to the loading bay immediately to the rear of the pend. The Appellant stated that the building in its entirety relied on the pediment being intact. Accordingly, it was submitted that the Defender is indeed liable for her share of the common repair cost and I was invited to answer the questions posed in the stated case in the affirmative and allow the appeal.

13. Mr Trotter who appeared for the Defender and Respondent urged me to uphold the Sheriff's judgment. He disputed that the building formed one set of premises and pointed out that the Disposition in favour of the Defender referred to three separate parts to be disponed. The first being 121 and 125 Constitution Street and the second being No 123 lying between the said premises ( Nos 121 and 125 )and third a one half pro indivisio share of the cart entrance and gates.

14. Mr Trotter likened the pend to a bridge with the solum of the pend distinct from the pend and separate to the solum of properties adjacent to the pend namely 121 and 125 Constitution Street.

15. Mr Trotter submitted that the loading bay which extends along the north east side of the yard was not a landing for the purposes of the Tenements (Scotland) Act 2004. He accepted that there was a rear door from the tenement No 125 Constitution Street into the pend at the rear. Originally there had been two doors:- one leading to 125 and one leading to 121 except the door leading to 121 had been blocked some time before. He did not concede that there was any right of access over the pend to the rear door leading to the flats at No 125. The pend only allowed a right of access to the workshop at the rear.

16. The Respondent urged me to adhere to the Sheriff's judgment and contended that there was no basis for Mrs Tindale being liable for common repairs to the building 121 & 125 Constitution St Edinburgh. The pend which formed No 123 Constitution Street could not fall within the definition of a "close" in Section 29(1) of the Act as the facts did not support the pend giving access to two or more flats. Therefore the pend was not part of the tenement building and the owner of the pend was not liable to contribute towards the cost of the repairs to the tenement.

DECISION

17. This case turns on the Tenements (Scotland) Act 2004 and its provisions. The Pursuer's case as described in the small claims summons is to the effect that Nos 121, 123 and 125 Constitution Street, Edinburgh constitute one building ; remedial work required to be carried out to part of the pediment of the archway over the pend and all proprietors have paid a share of that work apart from one, namely, the defender who is the heritable proprietor of 123 Constitution Street. That is described as a "close" or vennel giving access to the whole tenement. The summons goes on to state "the walls on either side of the close provide support for load bearing walls and section 2(5) makes it clear that it is part of the tenement. Section 8(1) states that the defender is liable to pay for works that provide support or shelter to any other part".

18. The Pursuer states that all other proprietors have paid their equal share.

19. The Defender disputes that the pursuer has a valid assignation of Mr McKenzie's interest and also disputes that there are any sums due by the Defender to Mr McKenzie. However it is clear from the Sheriff's judgment that there was no longer an issue relating to the assignation and it is also clear throughout the Sheriff's judgment and stated case that the case as argued in front of him turned on the interpretation of "Close".

20. "Close" is described in the interpretation s.29 as:-

"Close means a connected passage, stairs and landings within a tenement building which together constitute a common access to two or more of the flats".

The Sheriff in his judgment sets out in full his reasons for concluding that the pend belonging to the defender is not a close.

21. The Sheriff states in his judgment "It seems to me that the pend, which is undoubtedly a connecting passage would fall within the definition of a close in section 29(1) if (1) it is within a tenement building and (2) includes a stair and landing and (3) constitutes a common access to two or more flats in that building. The Sheriff goes on to conclude that the pend is not part of the tenement building as it is not part of the solum and land pertaining to the tenement building which surrounds it. Even if he were wrong in that he goes on to pose the question of whether the pend constituted a common access to two or more flats. It appears to have been accepted that there was a right of access to the workshop which would be one access but it was disputed that there was a right of access to the rear of No 125 through the door in the pend.

22. The Sheriff concluded that there was no need for proof on the question of the second access as the Pursuer's argument was fundamentally misconceived as the definition in section 29(1) of the word "Close" states that it means that there must be passage, stairs and landings which together constitute a common access and that the intention of the legislators is that the entrance to and stairwell of a flatted tenement is a common access for the purpose of the Act. The sheriff emphasised the word "together". It is by no means clear why the Sheriff was presented with an argument which emphasised the nature of a close but perhaps that stemmed from the Pursuer's written claim which describes the property owned by the Defender as a close or vennel giving access to the whole tenement.

23. The issue on appeal is the same issue that arose before the Sheriff namely the interpretation of the Tenement (Scotland) Act 2004.

24. The Pursuer's submission on appeal remains the same, namely, that the pend owned by the Defender forms part of the tenement and that the Defender was therefore liable for her share of the repair.

25. Mr Hunter, who again represented his own interests in the appeal, argued that section 8 of the 2004 Act provided assistance as it states

"8(1) subject to subsection (2) below, the owner of any part of the tenement building, being a part that provides, or is intended to provide, support or shelter to any other part, shall maintain the supporting or sheltering part so as to ensure that it provides support or shelter."

In subsection (3) the duty imposed by subsection (1) above on an owner of a part of a tenement building may be enforced by any other such owner who is, or would be, directly affected by any breach of the duty".

26. The Appellant also relies upon section 2 of the 2004 Act subsections (1) (5) and (6).

(1) Subject to subsections (3) to (7) below, the boundary between any two contiguous sectors is the median of the structure that separates them; and a sector -

(a) extends in any direction to such a boundary; or

(b) if it does not first meet such a boundary -

(i) extends to and includes the solum or any structure which is an outer surface of the tenement building; or

(ii) extends to the boundary that separates the sector from a contiguous building which is not part of the tenement building.

(5) A close extends to and includes the roof over, and the solum under, the close.

(6) Where a sector includes the solum (or any part of it) the sector shall also include, subject to subsection (7) below, the airspace above the tenement building and directly over the solum (or part).

27. The issue to be determined in this case remains one of interpretation of the statute. To that end it is important that I have regard to the terms of the Act in their entirety. However, the exercise of interpreting statute cannot be conducted in isolation and the first step is to look at the background and problem as presented by the facts.

28. The problem appears to be that part of an archway over the pend required to be repaired. In order to understand the nature of the building comprising 121, 123 and 125 Constitution Street I was provided with a photocopy of a photograph showing the frontage and the archway in question. The property in its entirely had originally been the bond building of Macdonald & Muir with associated offices. The pend provided a cart entrance to the yard and loading area at the rear. The street elevation shows gates and the archway. It also shows rather splendid doors leading to Nos 121 and 125 respectively. The elaborate architectural detail is given full expression around the doors and above. It was accepted that part of the pediment of the archway shown over the pend required repair. The owner of the pend declined to contribute a share of the cost and she is sued in this action for that share.

29. The first three sections of the Act deal with boundaries and pertinents. Section 4 applies the tenement management scheme which is the default Tenement Management Scheme setting out the arrangements for dealing with common property. This develops in Schedule 1 to the Act. Rule 1 of Schedule 1 deals with the scope and interpretation of inter alia "scheme property". It is worth observing that the area which required repair namely - "part of the pediment of the archway" - would constitute "scheme property" in terms of Schedule 1 - 1.2 on a number of counts but particularly para (a) and (c) (iii) - external walls (vi) - any wall beam or column that is load bearing and possibly (iv) its roof. Scheme property is a new concept and does not appear to relate to or affect issues of ownership. The scheme property however represents those parts of a tenement in which the owners have a shared interest. If it is scheme property then it becomes subject to the maintenance provisions set out in the schedule.

30. Sections 7 - 10 set out provisions with regard to the duty to maintain so as to ensure provision, support and shelter. The terms of Section 8 (1) and (3) have already been referred to. Leaving aside the interpretation sections the remaining sections deal with operational matters relating to repairs, insurance and the like.

31. The Act introduces the term "sector" in the context of Determination of Boundaries and Pertinents (sections 1 - 3). A "sector" is defined in section 29 and appears to me to be a method of determining or describing the areas which comprise a tenement building.

"Sector " means -

(a) a flat

(b) any close or lift ; or

(c) any other three dimensional space not comprehended by a flat ,close or lift, and the tenement building shall be taken to be entirely divided into sectors. Section 29(1)

32. It is evident from this that a sector can be a three dimensional space without requiring to have the characteristics of a "close ". It is likewise evident that No 123 comprises the ground or solum of the pend and the three dimensional space above the ground to the Archway. Not only does this constitute a sector of the tenement based on the definition of "sector" but the parties agree that the pend is itself enclosed on the street aspect by large ornate gates. I find that careful consideration of the Act and the facts of this case lead to the conclusion that the pend must be part of the tenement building comprising Nos 121, 123 and 125 Constitution Street Edinburgh.

33. It is important that the exercise of statutory interpretation brings sense and meaning to bear on the resolution of disputes. It is indeed unfortunate that the case before the Sheriff turned on and indeed was decided on the definition of "close ". On that narrow issue the Sheriff's decision that the pend is not a close is correct on the agreed facts. However this is to overlook the wider statutory background and fuller consideration of the argument on appeal and provisions of the Act leads me to the clear view that the pend which constitutes No 123 does indeed form part of the tenement building and that the obligation imposed by Section 8(1) and (3) does apply to the defender as owner of the pend.

34. It would also offend against common sense to hold otherwise. The requirement to repair the pediment was accepted. The pediment relates to the archway over no 123. The viability and soundness of the pediment and archway must clearly be a matter of common concern to the owners of the flats and also the pend. There would be serious implications for all if there were to be a fall of masonry or a collapse of the pediment/archway. The sheriff's judgment would excuse or exonerate the owners of the pend from responsibility for maintenance of the archway or other common parts. This cannot be a proper or reasonable outcome in the circumstances. The archway forms the roof and boundary of the pend and the owner of the pend has a common interest along with the owners of flats in 121 and 125 in maintaining the archway.

35. Accordingly the Defender is liable to contribute to the cost of the repairs to the common property and I will allow the appeal. I will answer the first four questions posed by the Sheriff in the stated case in the affirmative. The fifth question in my view is no longer relevant however for the sake of completeness I comment that the focus on the narrow question of whether the pend was a "close" before the Sheriff was unfortunate and caused proceedings to overlook the wider concept of the "Act". It led to the issue only being partially argued before the Sheriff. The pend did not need to be a "close" to form part of the tenement as I have found. Careful analysis of the "Act"

informs of the concept of "sectors". The pend being a three dimensional space enclosed by the ground (solum); walls and archway above is clearly a sector within the tenement building. It is not necessary for the pend to be a "close" for the purpose of establishing the Defender's obligation to contribute to the cost of the repair.

(signed) Mhairi M Stephen

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