Scottish Sheriff Court Decisions

Court Ref: B747

 

 

SHERIFFDOM OF TAYSIDE CENTRAL AND FIFE AT KIRKCALDY

 

JUDGEMENT OF SHERIFF J H WILLIAMSON

 

 

 

in the cause

 

 

 

(FIRST) WILLIAM GRANT SINCLAIR residing at 162 High Street, Dysart. KY1 2UL and (SECOND) ALISON MARY PRESTON SINCLAIR residing at 166 High Street, Dysart KY1 2Ul

 

PURSUERS

 

Against

 

 

FIFE COUNCIL, Fife House, North Street, Glenrothes, Fife KY7 5LT

 

DEFENDER

 

Act: Stewart, QC.

Alt: Hawkes, Advocate.

 

Kirkcaldy 24th August 2012

 

The Sheriff having resumed consideration of the cause FINDS IN FACT;

 

1. The Pursuers are the heritable proprietors of the property known as 166 High Street Dysart, ("the Property"), having acquired it in 2008. The Defenders are Fife Council, Fife House, Glenrothes. The Defenders are the relevant roads authority.

 

2. The Property is bounded by a retaining wall ("the Wall") which runs along the north-west side of the Property. The wall retains a section of High Street, Dysart ("the Road"). It is over one hundred years old.

 

3. In 1990 an original building on the site was demolished to enable the present dwelling house to be built. The Wall is the rear wall of the former building. It was preserved and left to act as a retaining wall.

 

4. The Road has been adopted by the Defenders from Rectory Lane, Dysart to Edington Place, Dysart.

 

5. The Wall is gravitational and approximately 4.2 metres high. It has a parapet of 1.1 metres above road level. There is a drop of approximately 3.1 metres between the level of the Road and the Pursuers' garden, which forms part of the Property.

 

6. The Wall is constructed in random sandstone rubble bedded in limestone mortar and back filled. The back fill at the upper reach of the Wall is loose and incohesive as a result of road works and the installation of services over many years.

 

7. A series of recesses are apparent on the Wall at two levels as a result of the earlier removal of joists supporting the cross walls of the now demolished original building.

 

8. The thickness of the Wall varies, increasing in depth. The width at the parapet is approximately 300-350mm; the width at half-height is approximately 500mm and approximately 600mm at the base. There is a batter of 1:17 from top to bottom. The Wall would not comply with current design standards for unreinforced masonry.

 

9. On 28th December 2009 an 8.5 metre section of the Wall collapsed without warning. Following the collapse the parapet remained in situ. It collapsed a short time later. The debris from the collapse has fallen into the Pursuers' garden.

 

10. The collapse of the Wall has caused subsidence of the surface of the Road. The bitumen macadam finishing the Road surface has cracked. The Road surface has been lost entirely in the area immediately adjacent to the Wall. A water main and electrical cable have been exposed as a result of the collapse.

 

11. Following the collapse the Defenders erected metal barriers around the area of the collapse.

 

12. The Wall was visually inspected by the Defenders' Highways Department in July 1998. A distinct bulge was noted at the lower section of the Wall. The Wall was found to be stable.

 

13. Between July 1998 and August 2010 the Wall was visually examined by the Highways Department on six occasions. The last occasion was on 4^th August 2010. As at that date the Wall was found to be stable with only minor repairs required to the pointing and parapet coping stones.

 

14. The Wall was never physically examined by the Highways department prior to its collapse, to investigate its depth, strength and fitness for purpose.

 

15. The National Register maintained by the Scottish Road Works Commissioner discloses that no street works have been undertaken on or around the Road since 1999.

 

16. Between 1994-1999 Virgin Media installed cables under the roadway at the opposite side of the Road from the Wall.

 

17. The sewers, water pipes, gas pipes and electricity cables under the Road have been in situ for decades.

 

18. Between 1992 and August 1999 bus No 7, an hourly service, ran along the Road. As at August 1999 it became bus No13. The bus operated was a Dennis Dart. As a consequence of parking on the Road the Dennis Dart proved difficult to manoeuvre. Between 2005 and 2007 the bus company operated the lighter and smaller Optare Slim-Line Solo. As at February 2007 a decision was taken to re-route service No 13 away from the Road.

 

19. Other than during the periods 1st - 14^th July 2009 and 16^th - 30^th September 2009 no bus service ran along the Road from February 2007. Between these dates bus No 13 (Slim-Line Solo) was re-routed to accommodate gas repair works in Dysart. It ran hourly. Additionally shuttle service No 13D (Mercedes Vario) operated a half-hourly service during the peak period (7am-9.30am and 3.30pm-6.30 pm).

 

20. Gradual weakening of the Wall occurred over its life time. No single factor contributed to its collapse. The trigger for the collapse is unknown but the following contributed to is demise; the Wall is too thin by current design standards for its purpose; removal of crosswalls around 1990 reduced the Wall's stability; removal of joists and failure to patch the joist pockets reduced the Wall's stability; the increase in traffic generally and the use of buses along the Road increased the load and consequently the stress upon the Wall; backfill material was loose and subject to movement; water penetration together with the effects of freeze/thaw conditions would have reduced the Wall's stability; the mortar jointing at the site of collapse was eroded and a some stone missing; the Wall had developed a significant bulge at the site of collapse.

 

21. No act or omission on the part of the defenders contributed to the collapse of the Wall

 

22. The reinstatement of the Wall is conservatively estimated at in excess of £200,000, if the Defenders' preferred method of piling is undertaken.

 

23. The reinstatement works could not be completed in 28 days and is more likely to take 12 months.

 

 

 

FINDS IN LAW

 

1. That the Defenders are and on 8^th July were the Roads Authority as defined in section 151 of the Roads (Scotland) Act 1984 and responsible for the management and maintenance of the Road.

 

2. The Pursuers own and as at 28^th December 2009 owned the property at 166 High Street Dysart conform to Land Certificate title number X.

 

3. The Pursuers are and were on 28^th December 2009 owners of the Wall.

 

4. As at 28^th December 2009 the Wall was a retaining wall as defined in section 91(8) of the Roads (Scotland) Act 1984.

 

5. That the Defenders served notice under section 91(2) of the Roads (Scotland) Act 1984 ("the Notice") upon the Pursuers requiring them to; (1) Replace the collapsed wall with a new wall and foundation and (2) reinstate the damaged road.

 

6. That the Defenders were entitled to serve notice in terms under section 91 (2) of the Roads (Scotland) Act 1984 and did so on 8^th July 2010 in relation to the Wall. They have no such entitlement in relation to the Road.

 

7. Given the nature of the reinstatement work the specification contained in the Notice was reasonable.

 

8. That the requirements of the Notice are unreasonable.

 

THEREFORE quashes the Notice in terms of Crave 1 of the Initial Writ; Dismisses all other pleas-in-law; Assigns 5^th October 2012 at 10.00 am within the Sheriff Court House, Whytescausewayside, Kirkcaldy as a hearing on the question of expenses and to consider sanctioning the cause as suitable for the employment of Senior and Junior Counsel.

 

NOTE:

 

STATUTORY FRAMEWORK:

 

The Roads (Scotland) Act 1984 provides, so far as is relevant to these proceedings;

 

S91 (2) Subject to subsections (3) and (4) below, where it appears to the roads authority that a hedge, tree, shrub fence or wall on or near a road is in such condition that it, or part of it, is likely to cause danger by falling on the road, or that a retaining wall (whether or not near the road) is in such condition that there is constituted a danger to the road or road users, they may, by notice served either on the owner of the hedge, tree, shrub, fence or wall, or the occupier of the land on which it is situated, require him within 28 days from the date of service of the notice to carry out such work as will obviate the danger.

 

S91 (8)(a) subsection (2) above, "retaining wall" means a wall which serves, or is intended to serve, as a support for earth or other material on only one side.

 

S91 (9) A person upon whom a notice has been served under subsection (1) or (2) above may within 28 days of such service refer the matter by summary application to the Sheriff; and the decision of the Sheriff on the matter shall be final.

 

S136 Except where and in so far as otherwise expressly provided in this Act, a notice issued or served by a roads authority under this Act regarding the doing of anything in relation to land, shall -

 

(a) so far as necessary and reasonably practicable give details, including the location of the land;

 

(b) so far as is necessary and reasonably practicable specify the nature of any works which have to be carried out and of any requirements which have to be met;

 

(c) specify any period within which the notice has to be complied with;

 

(d) state any power of the authority, if the notice is not complied with, to enter the land and carry out the works specified in the notice and to recover their expenses in so doing; and

 

(e) intimate any right of appeal under this Act to the notice.

 

CASES REFERRED TO;

Allen & Sons Billposting Ltd v Corporation of Edinburgh 1909 SC 70

Glasgow Corporation v Glasgow Churches Council 1944 SC 97

Rodenhurst v Chief Constable of Grampian Police 1992 SC 1

 

TEXT BOOKS REFERRED TO;

McPhail, Sheriff Court Practice, 3^rd Edition, paras 26.06 to 26.09

 

 

PURSUERS' EVIDENCE

 

1. WILLIAM GRANT SINCLAIR gave evidence. He confirmed that he was the owner of 166 High Street Dysart. He accepted that the Wall formed part of his property and was the owner thereof. He understood the Wall to be a retaining wall. Prior to the collapse there had been no issue with the Wall. It had been regularly inspected by Fife Council and no remedial works had been brought to his attention. He had carried out no repairs or any work which may have undermined the integrity or stability of the Wall. After the collapse he assumed responsibility for reinstatement to rest with Fife Council. When it became apparent that the responsibility was his he checked to see if his insurers would underwrite the cost. His insurers refused to do so. He thereafter attempted to persuade Fife Council to accept responsibility and effect repairs. Fife Council refused to do so and served the Notice (production 5.1.2) in terms of the Roads (Scotland) Act 1984 requiring him to carry out the necessary work to replace the Wall with a new wall and repair the Road. He was of the opinion that the Notice was not sufficiently detailed in specifying the necessary works. No detailed engineering requirements were provided in relation to height, width and strength. No load bearing details were provided. While the Notice required him to contact and agree with all affected service providers namely BT, Scottish Gas, Scottish Water, Scottish Power and Virgin Media he was not in a position to do so. He accepted that he was informed by the Notice that he should contact Mike Loftus, Lead Officer, Structures Asset Management at Fife Council who would advise on what work is required and approve any plans for the reinstatement works. Even if he were in a position to carry out the works it was inconceivable that he could comply with the time limit of 28 days.

 

2. He explained that historically buses used the Road. He accepted that the service 13 was rerouted in February 2007. He thought that both service 13 and 13D operated throughout the period of the gas works. During the period of the gas works the Road was used as a rat-run significantly increasing the normal volume of traffic. He identified the type of buses used and spoke to their technical data. Fife Council Refuse Department operated 25 ton bin lorries along the Road.

 

3. In all the circumstances he considered that it was unreasonable for him to be expected to undertake the reinstatement works and that the Notice lacked specification enabling him to comply with it.

 

4. Karen Ann Brodie spoke to being a tenant between March and August 2009. She recalled an engineer from Fife Council inspecting the wall during her tenancy. She pointed out a large crack in the Wall. She recalled buses using the Road during the latter end of her tenancy. She thought they were big buses. She recalled refuse lorries using the Road and sometimes going too fast. She was unaware of any parking restrictions on the Road around the time of the gas works.

 

5. Robert Kay has been a resident of Dysart for eight years. He explained that the Road is too narrow for heavy traffic. It has always been a bus route. He spoke to the sizes of the buses using the Road. He was unsure of the frequency of the buses during the gas work period. He explained that parked cars made it difficult for busses to travel along the Road. He could not speak to the condition of the Wall prior to its collapse.

 

6. Lewis Kay explained that he was a taxi driver and lived directly opposite 116. He recollected that traffic was diverted along the Road while gas works were undertaken at Normands Road between July- October 2009. During that period he said Buzz buses used the Road. During that period HGV lorries used the Road. He could not speak to the condition of the Wall prior to its collapse.

 

7. James Moodie a Chartered Civil Engineer with Structural Services Unit, Fife Council confirmed production 5/2/1 to be planning approval for the development of the Property. As the boundary of the Property formed a retaining wall an easement strip was insisted upon for inspection of the Wall. Access was granted for inspection.

 

8. David Scott B.Eng, AMIC, CEng, MIStructE was called as an expert by the Pursuers. He identified production 5/6/2 as his CV and production 5/4/1 as a report he prepared following upon his inspection of the Wall. I had no hesitation in accepting him as an expert. I do not intend to rehearse Mr Scott's evidence because in fact there is little dispute between the competing experts as to the cause of the collapse. I therefore intend summarising his conclusions.

 

9. Mr Scott was of the opinion that the collapse was centred on a bulge identified in the Wall and was a 'punching' type failure. In other words the downward pressure of the road had caused the loose fill behind the wall to explode out through the weak point around the bulge. This in turn caused the Wall, parapet and roadway above to collapse. In essence this was caused by the following factors; (a) the initial rudimentary construction of the Wall afforded relatively limited resistance to lateral loading; (b) the Wall had been raised over a period of time and there had been a subsequent increase in retained material;(c) a zone of loose, cohesionless fill immediately behind the upper part of the Wall, either as a result of road widening or associated with the installation of modern services;(d) the removal of joists abutting the low side of the wall during previous development which formerly provided some degree of lateral support;(e) the introduction of heavy traffic along this section of the High Street including buses and the consequent increase in lateral pressure on the rear face of the Wall.

 

10. The following factors whilst contributing to the collapse were of less significance; (a) water penetration due to run-off from the Road, which may have had a detrimental effect on the mortar; (b) ground borne vibration due to heavy vehicles using the road.

 

11. Mr Scott discounted any failure to maintain the Wall, the presence of former joist pockets in the masonry and water pressure as contributing to the collapse.

 

12. Mr Scott spoke to the principles and effects of Ground Borne Vibration upon structures. He was unable to give empirical evidence as to what if any effect GBV would have on the Wall describing is only as a feasible contention.

 

13. Mr Scott was unable to say that there was a single trigger was for the collapse.

 

DEFENDERS' EVIDENCE

 

14. Mike Loftus BSc (Hons), CEng, MICE Lead Officer, Structures Asset Management, Fife Council gave evidence. He spoke to his report, defenders' production 5/5. Again I do not intend to rehearse his evidence, but to summarise his position as to the cause of the collapse.

 

15. Mr Loftus inspected the Wall post collapse. He noted the infill material to be dry loose and granular, which indicated to him little water penetration. He would have expected it to settle and cause no threat to the Wall. He explained that the Wall was a remnant of the earlier building. The removal of cross walls would have reduced the Wall's stability as they acted as props. Gradual deterioration of the mortar and masonry would undermine the stability and strength of the Wall. The Wall was built empirically and not to present day engineering standards. It was not designed to retain the soil plus the live loading on the road.

 

16. Mr Loftus explained that the Wall was subjected to examination biannually between 1998 and 2009. The last inspection was in August 2009, only four months prior to the collapse. What is described as a minor bulge was noted as far back as 1998. It had been monitored, reported as unchanged and raised no cause for concern. His investigations disclosed that only minor bitumous repairs had been carried out at the site of the collapse and no public utility works undertaken in the last ten years.

 

17. In conclusion he was unable to identify any single trigger for the collapse but accepted that all of the factors spoken to by him must have contributed to the collapse. A lack of maintenance could not of itself have caused the collapse.

 

18. The Notice had been served by Mr Dall. Any rebuilding work would have to meet his technical approval. He spoke to the process of obtaining technical approval. Given the magnitude of the reinstatement works he accepted that the pursuers would need to instruct a design engineer and building contractor. They would be unable to undertake the process themselves. He explained the requirement to meet either BSI or Eurocode standards. He accepted that the Notice was not specific, but it gave general notice of the requirement to reinstate the Wall and Road. The Notice could not contain greater specification as to do so may be tantamount to imposing a design solution on the pursuers.

 

19. He explained that the Council would prefer that the Wall was rebuilt using piling. The cost of the project was estimated by a contractor on an informal basis to be in the region of £250,000. He accepted that the finished product would be described as betterment rather then reinstatement.

 

20. Mr Alan Houliston a chartered civil engineer employed by the defenders in their Structures and Asset Management division gave evidence. He is responsible for supervising the inspection scheme for structures related to highways. This includes retaining walls and the Wall. The structures are inspected for safety reasons and the inspections are carried out to national guidelines. The inspections are visual and carried out every two years. The inspectors are qualified to HNC level or through the Clerk of Works scheme. They are guided by and must be familiar with the Bridge Inspection Manual, which describes how to classify the severity of any defects on an objective basis. The classification system stipulates a scale of 1-5; 1-nothing of note; 2-minor; 3-moderate; 4 and 5 - urgent attention required. In carrying out the inspection the inspector must get as close as possible to the structure. They must review the preceding report before embarking on the new one.

 

21. Mr Houliston was referred to production 5/2/2 being the record sheets of the inspections of the Wall between April 1998 and 2009. The inspection carried out on 8^th July 2009 recorded a level 2 bulge in the Wall. No action was deemed necessary. Thereafter the salient features of the subsequent inspections were; 19^th April 2000 - no change; 13^th February - no change. No mention in the report of the existence of the bulge; 2^nd January 2004 - no change. No mention of the bulge. Mr Houliston carried out this inspection personally and could not recollect seeing a bulge; 27^th September 2005- again carried out by Mr Houliston. Bulge noted as minor, no action deemed necessary; 16^th August 2007 - bulge noted. Again described as minor. Worthy of monitoring but no action necessary. Erosion noted to both stone and pointing; 4^th August 2009 - again bulge noted as minor and no action required.

 

22. In Mr Houliston's opinion the seriousness of a bulge in a wall depends on a number of factors including size and location. The general practice is to monitor bulges if they do not warrant taking out and rebuilding. There was nothing in the inspections that suggested anything other than monitoring was appropriate. If cracks alongside the bulge had been evident then intervention may have been required. The behaviour of masonry walls is difficult to predict. Walls which look stable can suddenly collapse. Equally walls which look in poor condition can be perfectly stable. Bulges can develop and settle. In these circumstances collapse is not inevitable. Even with the benefit of hindsight and reviewing the inspection reports there was nothing to indicate that intervention was appropriate. There was nothing in the inspection reports to indicate that the Wall was in danger of collapse.

 

23. Gary Moyes Lead Officer, Transportation Services, Fife Council gave evidence. He explained that before a bus route was authorised his department would consider the whether or not there should be any height weight or width restrictions on the proposed vehicles having regard to the proposed route. If necessary the Council would run a test bus along the route. He explained that between 1992-1997 service K7 ran hourly along High Street/Edington Place. The vehicle used was a 29 seater. From 1997-2005 the K7 became No 13 and used the same route and frequency. The vehicle operated was a Dennis Dart. Following complaints about access to and from the Road from 2005-2007 a smaller Optare Slimline Solo bus was operated. In February 2007, as a result of continued access problems a decision was made to reroute service No 13 away from the Road. From February 2007 until a brief period in2009, no bus service ran along the Road. As a result of repairs to gas mains buses again ran along the Road during the middle fortnight of July 2009 and the last fortnight of September 2009. Service No 13 ran along the Road hourly operating a Slimline Solo and a shuttle bus ran half-hourly during the peak periods (7am-9.30am and 3.30pm-6.30pm) operating a Mercedes Vario.

 

24. Ian Buchanan Smith, Traffic Management Lead Officer, Fife Council explained that his remit was to ensure the safe movement of traffic throughout the Fife area. He was responsible for the preparation of Road Traffic Orders. These orders regulate inter alia speed, height and height restrictions. They are used to affect road closures. So far as the Road is concerned there are no height/weight restrictions. From 2004 a speed limit of 20mph has been in effect. A survey in 2008 disclosed that 525 vehicles had use the Road in a 24 hour period. The Road is not a through road and used by local traffic only. Although buses ran along the Road during the gas works period the route was not signed as a diversion route. The diversion route was along Normand Road, Dysart. The Council have never considered the Road for widening. He was unaware of any distress to the road or any dangers presented by the Wall. He was aware that the Wall was subject to regular inspection. He explained that stress on a road can be reduced by lower the speed of traffic along it.

 

25. Alan Baker, Chartered Engineer gave evidence. His CV forms production 6/2/2. He prepared two reports which form productions 6/1/3 and 6/1/4. They speak for themselves. I do not intend to rehearse them and intend only rehearsing the salient features of Mr Baker's evidence. In fact other than on four issues Mr Baker largely agrees with the opinion of David Scott.

 

26. Mr Baker explained that the Wall would not comply with current design standards for unreinforced masonry. It was to thin, even at its deepest point for the purpose it now served namely supporting the Road. Unreinforced masonry is not the preferred option for retaining walls. The depth of the Wall is in his opinion the fundamental reason for the collapse. The other factors impacting on and contributing to its demise were; the gradual weakening of the Wall over time; the poor construction of the Wall; the removal of the crosswalls around 1990; penetration of the Wall by water; the cohesionless nature of the backfill; the passage of vehicles over the Road and a lack of maintenance of the Wall. He did not accept that the passage of buses over the Road during the gas works could be a single trigger.

 

27. He did not accept that there was any one trigger causing the collapse of the Wall. All of the above factors brought the Wall to the point where the imposed loadings had overcome its resistance. Having reviewed all the material available to him and having examined the Wall he concluded that the Wall was a "collapse waiting to happen". Particularly so when it was appreciated that the collapse occurred at a point devoid of support and identified as in the area of the bulge.

 

28. He explained that bulging in a masonry wall was not uncommon. Bulges can settle and cause no instability. The existence of a bulge in this wall would highlight the need for careful monitoring and scrutiny. The thickness of the Wall was not apparent from a visual inspection. Good engineering practice dictated that a test bore be undertaken to determine the thickness of the Wall and its suitability for the purpose it presently served.

 

29. Robert McLellan, Head of Transportation and Environmental Services, Fife Council explained that before service of the Notice he independently confirmed the ownership of the Wall and the reasons for its collapse. He explained that if the Council were at fault then they would consider meeting the cost of repair either in full or part. By way of example if a Council owned JCB had collided with and caused the collapse of the Wall then the Council would repair at their expense. In this case the Council had sought to negotiate with the owners to no avail and accordingly the Notice had been served. He was satisfied that there was no responsibility on the Council either for the collapse or cost of repair.

 

 

PURSUERS' SUBMISSIONS

 

30.  This application relates to a notice issued to the pursuers by the defenders as roads authority under section 91(2) of the Roads (Scotland) Act 1984 which provides:

 

Subject to subsections (3) and (4) below, where it appears to the roads authority that-a retaining wall (whether or not near a road) is in such condition that there is constituted a danger to the road or to road users, they may by notice served either on the owner of the... wall or on the occupier of the land on which it is situated, require him within 28 days from the date of the service of the notice to carry out such work as will obviate the danger."

31.  Section 91(8) defines "retaining wall" as "a wall which serves or is intended to serve as a support for earth or other material on only one side".

 

32.  It is not in dispute that the pursuers are owners of the wall, part of which has collapsed, adjacent to their property at 166 High Street Dysart or that the wall is a retaining wall which supports the ground behind it over which the High Street runs.

 

The Notice

 

33.  The notice is No. 5/1/2 of process. It records that the retaining wall at 166 High Street in the pursuers' ownership is in such a condition that it there is constituted a danger to the road or road users. It requires them "within 28 days of service of the notice to carry out such work as will obviate the danger". "Details of necessary work" are set out. These are: "(1) Replace the collapsed wall with a new wall and foundation; (2) reinstate the road". The notice goes on to require that the pursuers adhere to specified conditions. The first is that prior to works commencing they contact a certain officer, Mr Loftus in the defenders Transportation Services who "will advise on what work is required also approve any plans for the new foundation and wall as required for the reconstruction." The second condition requires them to "contact and agree with all affected service providers... what is required with regard to safeguarding the affected plant and who is to carry out this work". The remaining conditions require the pursuers to apply for a formal road closure and to supply a name and address for invoicing purposes.

 

34.  The application is made under section 91(9) of the Act which provides: " A person upon whom a notice has been served under sub-section (1) or (2) above may.... refer the matter by summary application to the Sheriff and the decision of the Sheriff shall be final".

 

 

 

 

Scope of referral

35.  Section 91(9) does not confer in terms a right of appeal. However, it is the only means whereby the recipient of a notice may challenge or take issue with its requirements. In this regard it is notable that no specific grounds of referral are provided (error in law, incorrect material fact etc.). It is accordingly submitted that it provides a general right of referral. The applicant may raise any matter relevant to the notice which has been served. There is no restriction on the grounds of referral although it is accepted that the basis of referral must be the notice or some aspect of it or the circumstances in which it was issued with which the applicant is aggrieved. It should be noted that service of a notice is a matter for the discretion of the roads authority. Accordingly, it must be open to the recipient to argue in a referral to the sheriff that in the particular circumstances the authority acted unreasonably or unjustifiably in exercising its discretion to serve a notice. The court is entitled to consider the factual basis or merits of the decision which in the present case would cover the cause of the collapse. It can consider whether it would be expedient or reasonable to uphold the notice.

 

36.  Sheriff Hall after a debate in this case at the instance of the defenders upheld this approach (p.14 of Note) and allowed a proof on averments in article 6 relative to causation of collapse. On that basis the legal basis of the scope of the appeal is settled. However, reference is made to the authorities in support of that approach. McPhail, Sheriff Court Practice at paras. 26.06, 26.07 and in particular, para. 26.08. In that paragraph reference is made to Glasgow Corporation v Glasgow Churches Council 1944 SC 97. Attention is drawn to the judgements of Lord Jamieson at p.117-118, 123 and Lord Justice-Clerk Cooper at p.124 and 125. It was held in that case, relating to the sheriff's role as confirming authority in respect of bye laws, that he was entitled to consider the reasonableness and expediency of what was proposed in the bye-law and not merely whether it was ultra vires.

 

37.  Reference is also made to certain observations by Lord Justice-Clerk Ross delivering the opinion of the court in Rodenhurst v Chief Constable of Grampian Police 1992 SC 1. The issue in that case was whether there was an appeal from the sheriff to the sheriff principal and the Court of Session in relation to an appeal against the decision of a chief constable to revoke a firearms certificate. That involved consideration as to whether the sheriff was acting in an administrative capacity. At p. 9 the Court recognised that the proceedings originated in an administrative act by the chief constable so that when an appeal was taken against his decision the sheriff is exercising an appellate jurisdiction. That, it is submitted, is the position in this application. Later at p.10, the Court contrasted the legislation in an earlier case (Allen & Sons Billposting Ltd v Corporation of Edinburgh 1909 SC 70) where the only ground of appeal provided was whether the authority had reasonably exercised its discretion with that in the case before them where there was merely provided a right of appeal without grounds. They explained that in these circumstances, it was incorrect to say that the court could only interfere where there had been an unreasonable exercise of discretion. That, it is submitted, applies to the present case.

 

38.  While the subject matter of the Glasgow Corporation case was different, it is submitted that the approach in it supports the proposition that the grounds of referral and the role of the sheriff are not to be narrowly construed. Rodenhurst is similarly supportive of the same approach. In other words, it is not simply a question whether the wall is in such a condition that it is a danger to road users and whether the recipient is the owner as is maintained by the defender. Rather the sheriff must consider, if raised, the factual circumstances giving rise to the notice and determine the reasonableness or expediency of the notice and its requirements being imposed on the pursuers in the circumstances of the case. In that regard he must consider the evidence before him relating to events giving rise to the notice including the cause of the collapse. This is of particular relevance to the pursuers' case in article 6 which contends that to a material extent collapse was contributed to by factors not attributable to the pursuers, that is factors relating to the use of the road, and the nature of the material under the road. The pursuers maintain that in these circumstances, the imposition of the requirements in the notice is unreasonable and unjustified. These issues will be addressed shortly but it is important to stress that there is no other mechanism whereby the pursuers can challenge the reasonableness or expediency of the notice on that basis. There was some reference in evidence (McLennan) to the ability of the roads authority to contribute to the cost of repairs in the context of the defenders being partially responsible for the collapse. That refers to section 91(5) but it is evident from the terms thereof that that is purely a matter for the discretion of the roads authority. That is not a mechanism or remedy available to the pursuers.

 

39.  It might be suggested that comparison with section 93 indicates that a narrower construction should be given to the scope of a section 91(9) referral. Both provisions relate to dangers relating to roads. Section 93(1) empowers the authority to take steps and recover the expenses thereof (cf section 91(2)). In these circumstances it is quite appropriate that the referral provision in section 93(6) (a) is in the terms it is in. Section 93(2) requires the occupier to take such steps as may be so specified as to remove the risk of injury. The right of referral is found in section 93(6) (b). It is a general referral. The only difference with section 91(9) is the reference to a person who considers that he should not be required to take the specified steps. That is of no materiality and provides no reason to restrict the scope of section 91(9). The whole purpose of the right of referral is that it enables a person served with a notice to challenge the requirements in the notice, that is, to enable the owner to argue that in the circumstances the requirement in the notice should not be imposed on him. It is general right of referral. It should not be construed narrowly. In this regard it should be borne in mind that a limited period is allowed for referral and the sheriff's decision is final.

 

Legal Issues

 

40.  Before addressing causation, there are a number of other important legal issues to revisit. These were addressed by Sheriff Hall after debate. These relate to the requirement to reinstate the damaged road and the lack of specification of the work required in the notice. On the first issue, the sheriff held that the pursuers' case that the notice could not lawfully require the reinstatement of the road was relevant. Curiously, he considered that evidence required to be heard on this matter which it is submitted is a pure matter of law. There is a consequential issue as to the effect on the validity of the notice of a decision that works to the road cannot lawfully be the subject of a notice.

 

Reinstatement of the road

41.  The argument is that the defenders have no power under section 91(2) of the Act to require the pursuers to reinstate the road. The notice is served on the owner of the wall because it is in such condition that it is a danger to the road or road users. As owner, he can be required to carry out the necessary work. However, the same is patently not the case with the road. He does not own the road or the solum. He is not responsible for its maintenance; the defenders are as roads authority under section 1(1) of the 1984 Act. The pursuers cannot simply proceed to go in and carry out reinstatement of the road yet that is what the notice purportedly requires them to do.

 

42.  It is acknowledged that persons other than the roads authority may obtain the consent of the authority to carry out work in or excavate under a public road subject to conditions. That is clear from the terms of section 56 of the 1984 Act. Reference is made to subsections (1), (2) and (4). In terms of the latter provision, specific reference is made for making good of damage occasioned by the works. None of this entitles the authority to insist on reinstatement of the road in the notice. It might be argued that service of the notice is authority or consent to undertake the work to the road. However, that contention is misguided. The two provisions (section 91 and 56) are quite separate and distinct. Section 91(2) empowers the imposition of a requirement on the owner of the wall. The notice orders the pursuers to do certain work; it is not a matter of choice. Further it purports to impose a condition effectively requiring the agreement of council officers to any proposed works. The pursuers would require obtaining consent under section 56 to any works to the road. Such consent cannot be constituted or given in advance by service of a notice which imposes a requirement to carry out work to the road. The authority would require knowing precisely what work is proposed before they could consent. Conceivably, if there was disagreement as to the nature of the work required there could be an impasse. That the two provisions are separate and distinct is clear from a consideration of the terms of sections 140(1) (e) and (f) and 140(6) (a) and (b). Accordingly, the defenders cannot in a section 91(2) notice validly impose a requirement to reinstate the road. They have no power to do so.

 

43.  There is an additional factor relating to the possible impact on service apparatus under the road. The notice by condition purports to impose a requirement to agree with named utilities who, presumably, have pipes and cables under the road, steps to safeguard that plant. Mr Scott explained that a water pipe and electricity cable is within the fill under the road close to the area of collapse and this is visible form the photographs. The problem as explained by Mr Sinclair and accepted by Mr Loftus is that he is in no position to secure the agreement of these providers who would require to be satisfied that their apparatus would be protected. In this regard as with the road, a third party such as the pursuers could not simply instruct contractors to go in and do work which might involve movement of or interference with such apparatus.

 

Severability

44.  The important issue which then arises is that if, as submitted, the defenders did not have power to require the pursuers to reinstate the road in terms of the section 91(2) notice, what is the effect on the notice? Is the requirement to replace the wall - assuming that it is, in itself, valid - severable so that it might survive if the requirement in respect of the road is unlawful. That question must be answered in the negative. It is patently obvious that it would not be practicable for the requirement in respect of the wall to be implemented if that in respect of the road could not lawfully be imposed. One could not replace the wall without also repairing the road. Mr Loftus agreed that both components would require to be done by the same contractor. It is not possible to sever the notice. Accordingly, the effect would be that the whole notice should be quashed whether or not the requirement in respect of the wall is effective and valid.

 

Specification

45.  The next issue is that of specification of the work required in the notice. The second paragraph simply repeats the statutory wording. The "details of the necessary work" are listed - replace the collapsed wall with a new wall and foundation and reinstate the damaged road. No more is specified. Where section 91(2) refers to "such work as will obviate the danger" that carries the implication that some form of specification is required. It is submitted that more specification is required than is given in this notice which does no more than state the obvious in terms of replacement and reinstatement. In this regard one must bear in mind the serious consequences for the recipient. On any view, significant works are required with significant cost implications albeit parties' estimates vary widely. The recipient must be given some detail of what is required. It is not suggested that a detailed contractual specification is necessary. However, it is clear from Mr Loftus's evidence that the wall will require to comply with certain standards in terms of construction and design and traffic loading. He assumed that the same would be the case with the road although no detail was given on that. Reference was made to a design manual for roads and bridges. The problem is that the notice says nothing other than a reference in a purported condition that Mr Loftus "will advise on what work is required and also approve any plans..." That does not tell the Sinclairs what is required.

 

46.  Mr Loftus' position is that it is for the pursuers as the persons doing the works to arrange the design of the works and then submit that for approval by the Council. That was the practice of the Council. They would not countenance the occupier simply doing the work. There had to be compliance with standards. However, the difficulty remains that the notice, mirroring the statutory provision, does require the recipient to do the work. The only reference to detail is in the condition. Even there it simply advises that Mr Loftus will advise what is required. It is obvious that what might be proposed by the recipients might not meet with the approval of the Council. Given the nature and estimated cost of the piling option for replacement of the wall considered by the Council and Mr Scott's observations thereon, it is not fanciful to contemplate that agreement might not be reached. Mr Loftus accepted that until the recipient knows what is acceptable and obtains Council approval he cannot do any work to comply with the notice. While the defenders could ultimately go in and do what work they considered was required by the notice in terms of section 140(1) (g) of the Act and seek to recover the expense, the whole purpose of the Notice procedure is to seek to have the owner do the work. That purpose is defeated if the notice is so worded, as here, that the owner cannot do what he considers is required without the prior approval of the roads authority which approval might not be forthcoming and cannot be compelled.

 

47.  It was suggested at debate that in order to found a challenge to specification, it was necessary to address the reasonably practicable approach in section 136 of the Act. However, that is not pled by the defenders and it was not maintained in evidence that it was not reasonably practicable to say more than was said. The pursuers' argument is not with the level of specification but with the absence of any specification.

 

Conditions

48.  It is to be noted that any content which the notice has in respect of specification is found in the condition noted at the first bullet point. For the reasons explained that is not sufficient. However, in any event, it is submitted that section 91 does not empower the roads authority to issue a notice under section 91(2) subject to conditions. In that regard it may be contrasted with, for example, sections 56 and 61 of the Act. More widely it may be contrasted, for example, with the powers of a planning authority to attach conditions to a grant of planning permission under section 37 of the Town and Country Planning (Scotland) Act 1997 or the power of a licensing authority to attach conditions to a grant of a licence issued under para. 5(1) (b) of Schedule 1 to the Civic Government (Scotland) Act 1982. The difference is that these various provisions empower a party to do certain things such as implement permission or operate under a licence. Section 91(2) is quite different in that it requires the recipient to do something. The notice should specify clearly what he must do. Ascertainment of what is required should not be left to a condition which the authority ex facie has no power to attach. While one can see a utility in a roads authority being able to attach conditions, they have no such power. That is particularly important where, as here, the purported condition is the only place where any information is given as to the work required beyond the bare requirement to replace and reinstate, although all that the condition does is, of course, to refer the recipient to Mr Loftus.

 

Causation of collapse

 

49.  The issue with which the proof was mainly concerned was that of causation, that is, consideration of what were the causes of the collapse of the wall at 166 High Street. The main sources of evidence were the two experts, Mr Scott for the pursuers and Mr Baker for the defenders although there was also some general evidence from Mr Loftus and Mr Sinclair. Both Mr Scott and Mr Baker prepared reports (5/4/1 and 6/1/3 and 4).

 

Areas of Agreement

50.  In many respects, there was not much in the way of dispute or difference between the experts. Both agreed that there were number of factors contributing to the collapse. There was no dispute as to the age of the wall and the fact that it was not built to cope with modern traffic loading. It is of modest thickness or width. It was not in dispute that despite that, the wall had survived for a long time. Subject to caveat both agreed that the removal of the building formerly on site and, in particular, any crosswall(s) could have had a detrimental impact. The caveat accepted by both was that the nature of any crosswall which might have provided some support is not known. The only evidence was a photograph in Mr Baker's report indicating the location of a possible crosswall. Mr Scott thought this simply indicated the presence of a former room. At any rate, the nature and thickness of any such wall is unknown as is, importantly, the degree of lateral support which it may have provided the retaining wall. Both experts laid particular emphasis on the presence of backfill material behind the wall such as to exert lateral pressure on the wall as a contributory factor in the collapse. Both laid emphasis on the on-going effects of traffic resulting in movement of backfill exerting lateral pressure on the wall as a contributory factor. In this regard it should be borne in mind that traffic can pass close to the wall due to the absence of a pavement on the south side of the street. Mr Scott described the mode of collapse as a "punching" failure involving masonry in the wall moving out laterally. Mr Baker did not dispute that mechanism and the way in which the wall had collapsed, namely the central panel of the wall bulging out. Mr Scott's view that the collapse was at a higher level was supported by the initial retention of the parapet following the initial collapse and the relatively narrow zone of fill lost under the surface.

 

 

 

Bus Usage

 

51.  There was considerable evidence about the usage of High Street by buses during the summer of 2009 while gas main replacement was being undertaken in Normand Road. This was in the context of a view shared by both experts that there was some form of trigger for the collapse in the form of a change of circumstances affecting the road. It appears likely that this is less important than might have been thought. However, it is appropriate to address the issue. Mr Scott proceeded upon the basis that the introduction of heavy bus traffic at that time was likely to be a contributory factor. In the light of the fact that buses had been using the street for a number of years until 2007, and the gap between their presence and collapse this may be a less obvious factor. Nevertheless, as Mr Scott pointed out and Mr Baker acknowledged, the re-introduction of buses at that time was still a change. These did include to some extent larger buses of the Dennis Dart type with a weight of around 6-7 tonnes. There was also evidence from residents that other traffic including heavy vehicles was informally using the street during the diversion. It also has to be seen in the context of both witnesses agreeing that traffic loading generally was a material contributing factor.

 

52.  There was some conflict over the period over which buses used the road that summer in the light of the fact that parking restrictions were relaxed for a period between mid July and mid October. Mr Moyes was clear that buses did not use the road during that period and that this was the reason for the relaxation. On the other hand, residents, including Mr Sinclair, were equally clear that buses did use the High Street throughout and there was evidence of buses having to manoeuvre past parked cars. Significantly, Mr Smith recollected being driven down the street in a narrower bus with a view to gauging the extent to which parking restrictions could be relaxed. This was with a view to buses using the street while restrictions were relaxed. This does support the other evidence that buses continued to use High street throughout the period of July to October. Ultimately, it is for the bus company and the email correspondence from them does not bear to indicate a cessation of usage. Mr Scott's view was that even if bus usage was limited it was still the more likely trigger than other candidates such as the effects of frost and groundwater. However, it may be that this aspect is not a crucial factor in the light of the evidence from Mr Baker and Mr Scott generally as to causation.

 

Other factors

 

53.  While Mr Scott remained of the view that traffic was still the most likely trigger, Mr Baker canvassed various other possible contributory factors, as distinct from triggers in paras. 4.7 and 4.8 of his report. Mr Scott explained why he did not think that these were likely in the circumstances. It is fair to say that Mr Baker viewed these simply as potential factors. On groundwater at 4.7, he said this was inconclusive. In relation to frozen water at 4.8, this was simply a possible factor. He did not refer to any evidence in support of this. Although there was some reference to erosion of joints in the inspection reports (5/2/2) this was mainly in relation to the road elevation or parapet which he said would be less significant. Removal of roof and floor joists was raised but as Mr Scott explained, this was not of significance in relation to a wall such as this one which functioned on the basis of gravity, that is vertical forces rather than compression and where floors and joists would only provide support to the extent that they were able to transmit load to other masonry structure, the nature of which was not known. Mr Baker acknowledged these points. Mr Scott did mention as a lesser but feasible contributory factor ground borne vibration due to passage of heavy vehicles. Reference is made to section 8 paras 3 and 4 of his report. Interestingly, in cross Mr Baker did not disagree with what he said, indicating that he had not done research into this matter.

 

Maintenance

54.  There was some reference in Mr Baker's report to a lack of maintenance (para. 5.2). This was not a matter raised at all with the pursuers before the collapse. Indeed, under reference to the inspection reports, it does appear that the issue of ownership was only raised at the time of the inspection in 2009. Mr Houliston indicated that the owner would only be advised if work was being recommended. This never happened. In these circumstances, one cannot place any responsibility on the owners in relation to maintenance.

 

Inspections

55.  Turning to the inspections, these were purely visual inspections. However, various matters were noticed. A distinct bulge was noted to the lower area in 1998. This was described as stable. The next inspection recorded a minor bulge at the middle. Mr Houliston thought it was probably the same bulge which makes the description surprising. Even more surprising is its disappearance from later reports. There were various references to localised erosion, cracking and weathering. Mr Houliston explained that erosion could be a pointer to failure if it worsened although as noted, erosion appears to have been mainly to the road or parapet side.

 

56.  What is significant about this is that Mr Baker was of the view that in the light of the bulge it would have been good practice to have monitored the wall by test coring to determine its thickness or digging down behind the wall which would, presumably, have identified the presence of the fill material. This would have given a better idea as to how safe it was. That clearly could not be determined by a visual inspection. This view was expressed initially without his having sight of the inspection reports. He noted the references to cracking erosion and weathering but the terms of the reports did not alter his view which he said would be good engineering practice. This failure is important given his view as to the significance of the thinness of the wall in respect of the collapse. The "collapse waiting to happen" scenario put to him was based on the thinness of the wall which in the absence of proper monitoring was concealed.

 

Major Factors

57.  While he stressed that its thinness was a fundamental point, it had survived for many years and both he and Mr Scott considered that there was more to the collapse than that. There were other factors at play. There were two major factors in terms of loading on the wall. The first was the presence of backfill behind the wall. This fill was susceptible to movement such as to put pressure on the wall. That was a material contribution to the collapse. On top of that there was the traffic loading which in turn put pressure on the fill which exerted horizontal force and pressure on the wall. In this regard Mr Baker acknowledged that vehicles have become heavier. This too contributed to the collapse. The experts were at one on these important contributory factors. To this must be added the important failure on the part of the roads authority to follow up the results of the inspections in the form of coring as recommended by Mr Baker in order to ascertain the thickness of the wall and its safety. Given the undisputed rudimentary construction of the wall and its now known thickness that is a very significant factor.

 

Reasonableness

58.  The important point is that none of these factors are in any way attributable to the pursuers as owners. They cannot be said to bear any responsibility for those factors which have contributed to the collapse. They are, of course, not responsible for the failure to monitor the thickness which, in turn, would have revealed the critical thickness of the wall. It is in these particular circumstances, that it is submitted that it would be unreasonable and inexpedient to impose on the pursuers the requirement to replace and reinstate which this notice purports to do. It would be wrong to confirm or uphold the notice. Another factor which it is submitted justifies such a decision is the basis on which Dr McLennan apparently took the decision to serve the notice. The only basis on which he said he would contemplate not serving a notice on the owner would be if it could be said that the Council was at fault in respect of the cause of the collapse. Whether or not the owners were in any responsible for factors contributing did not appear to be relevant. Furthermore and significantly, he appeared to be under a misapprehension as to causal factors. He explained that he understood from the Scott Wilson report that the primary reason for the collapse was the removal of outbuildings. That is not what is said in the report and it certainly does not accord with what Mr Baker said in evidence. A further factor was said to be the absence of reference in the report to improperly compacted material. However, it certainly mentioned the existence of fill behind the wall and the consequential lateral earth pressure combined with compaction forces (para. 4.5). In cross examination, Mr Baker, as noted, acknowledged the susceptibility of the fill material to movement. Accordingly, it is submitted that the decision to serve was undermined by inadequate or inaccurate information bearing upon causation of collapse of the wall.

 

59.  A relevant consideration in relation to reasonableness and expediency is the extent of the work required and the obviously substantial cost involved. Another factor is the undoubted betterment which would accrue to the defenders by virtue of replacement in terms of a more robust wall complying with modern standards. Presumably the same would occur with the road in terms of a more compacted sub-surface. While it is not suggested that this factor would in itself mean that it would not be reasonable to serve a notice, it is a relevant circumstance to take account of in addressing this issue. It is a point supportive of the contention that it would, in the circumstances, be unreasonable to impose the requirements in the notice. Also relevant is Mr Baker's evidence of surprise, in the context of the building warrant drawing for the construction of the house at 166 (6/2/11), that nothing was recommended or required in respect of the section of retaining wall away from the house. Dr McLennan thought that it would be necessary to take account of the whole length of the wall in relation to the building works. That appears not to have been the case.

 

60.  For the various reasons detailed above, it is submitted that the notice (5/2/2) falls to be quashed. The effect of this is that the way forward in terms of replacement must be a matter of agreement between the pursuers as owners and the defenders as roads authority. The first pursuer indicated in evidence his willingness to allow the defenders access for the purpose of carrying out work.

 

 

Motion

61.  The Motion on behalf of the pursuers is, therefore, to sustain the 1^st to 4^th pleas in law for the pursuers and quash the notice as first craved.

 

If the view were taken, contrary to what has been submitted, that the notice should stand in relation to the wall then it should be varied accordingly. The second crave is intended to reflect that situation. The wording is intended to limit what is required in terms of construction to what is necessary to obviate the danger and to avoid excessive betterment.

 

If the requirement in respect of the road were upheld, it should similarly be limited.

 

The reference to 8 weeks for carrying out the works was intended to reflect the unrealistic period provided for in section 91(2). However, in the light of Mr Loftus's evidence (couple of months for design and around four to five months for construction) it may be said that a period of at least 8 months would be appropriate in the event that the notice were to be upheld.

 

 

 

DEFENDERS' SUBMISSIONS

 

62. Section 91(2) of the Roads (S) Act 1984 states:

"Subject to subsections (3) and (4) below, where it appears to the roads authority that a hedge, tree, shrub, fence or wall on or near a road is in such condition that it, or part of it, is likely to cause danger by falling on the road, or that a retaining wall (whether or not near the road) is in such condition that there is constituted a danger to the road or to road users, they may, by notice served either on the owner of the hedge, tree, shrub, fence or wall, or on the occupier of the land on which it is situated, require him within 28 days from the date of the service of the notice to carry out such work as will obviate the danger."

 

In relation to walls, the essential elements within that provision are therefore:

·                         an awareness on the part of the roads authority that an identified type of wall (that is a non-retaining wall on or near a road, or a retaining wall wherever it is) is in a condition such as to cause danger

·                         a decision by the roads authority (the provision is permissive, not mandatory) to serve a notice on the owner/occupier (as defined in s.151)

·                         the imposition of a requirement (there is no discretion in relation to the timescale or the extent of the works) to carry out within 28 days such work as will obviate the danger

 

 

63. Subsection (5) empowers the roads authority to make such contribution as it thinks fit towards any expenses incurred by a person in carrying out necessary work in pursuance of the foregoing provision. However, that power only exists once the notice has been served - the past tense is employed for 'incurred' and the provision clearly contemplates either subsection (1) or (2) having already come into effect - and does not inhibit in any way, nor have any bearing upon, a decision to serve a notice in the first place. It is in any event entirely discretionary and the contribution may range from 0-100% depending on the circumstances.

 

64. Further guidance as to the necessary content of a s.91 notice (or indeed any notice under the Act) is provided by s.136:

"...a notice issued or served by a roads authority under this Act regarding the doing of anything in relation to land, shall-

(a)            so far as necessary and reasonably practicable specify the nature of any works which have to be carried out and of any requirements which have to be met;

(b)            specify any period within which the notice has to be complied with;

(c)            specify any period within which the notice has to be complied with;

(d)            state any power of the authority, if the notice is not complied with, to enter the land and carry out the works specified in the notice and to recover their expenses in so doing; and

(e)            intimate any right of appeal under this Act against the notice.

 

The notice served here (5/1/2) complied with those requirements. The nature of the works is specified so far as necessary and reasonably practicable. The defender did not, nor should it, seek to impose its own design solution for the replacement of the wall; that is left, quite correctly, for the pursuer to determine. The defender, being responsible for the public road which the wall supports retains only an approval capacity in line with its statutory obligations. Section 141(3) permits an extension of the period for completion of the works.

 

65. The challenge to the notice is taken under s.91(9) - which simply refers to the matter being referred to the sheriff without further elaboration as to the permissible grounds of challenge - and at debate the defender submitted that, properly understood, the provision admits only of an appeal based upon the statutory requirements of the notice provision (such as whether the recipient is the owner/occupier of the wall; whether it constitutes the necessary degree of danger to the road/road users etc). Other points of legal relevancy were also advanced - reference is made to the submissions narrated under the sub-headings 'Article 6' - 'Article 8' at pages 4-6 of the sheriff's note. The sheriff reached certain views as to the competent scope of the appeal at pages 11-13 and, after dealing with the ownership point (under 'Article 5') addressed the remaining lines of argument from page 14 onwards.

 

66. The defender adheres to the position taken at debate but of course recognises the judicial determination as to the relevance of causal evidence.

 

67. Where there is a conflict, the Court is invited to prefer the evidence of Alan Baker to that of David Scott. There are several areas of agreement between them on the fundamental issues but, where there is a divergence - such as on traffic vibration or the emphasis to be placed on the effect of buses - it is submitted that Mr Scott's views are susceptible to criticism. The ground borne vibration theory is highly speculative and appears to depend on a factual position (surface irregularities and the presence of speed control features) which is not present here. The buses were not using the road during the diversion period for as long as Mr Scott had assumed; he failed to take into account that buses had used the road regularly for at least 15 years up to 2007, without any apparent difficulty; his description of them as being 'large buses' appears overstated; and, crucially, insufficient importance is attributed to the gap period of 3 months between cessation and collapse.

 

68. There is no reliable evidence from which to draw the inference that the collapse of the wall was caused or materially contributed to by any act or omission on the part of the defender, far less that any such act or omission could be characterised as being sufficiently culpable so as to entitle a court to not give effect to the s.91 notice. The Sheriff at debate determined that:

(1) Under section 91(9) there is no limitation on the grounds of referral and no specifications of the grounds of appeal and it is reasonable to include a consideration of the merits and factual basis of the decision challenged (p12); and

(2) In this case causal factors are a matter of proof and it would be a matter of submission after proof whether it was a reasonable exercise of discretion by the defender to serve the notice (p14).

 

69. With respect, the second observation would appear to go further than the first requires. It is one thing to say, as at least one authority seems to suggest, that the Sheriff's function extends beyond purely legal issues and includes a consideration of the merits and factual basis of the decision under challenge; quite another to assert the existence, without any apparent authority, of not just a supervisory jurisdiction akin to judicial review but the court in effect stepping into the shoes of the roads authority and determining whether it acted 'reasonably'. It would be lead to a situation where a Sheriff (entitled to reach a final decision) has greater jurisdiction over the administrative acts of a public authority than a Lord Ordinary hearing a judicial review challenge (whose decision could be reclaimed).

 

70. The defender's submission is that a power exists under s.91 (2) and the function of the court at this stage is to determine whether the circumstances which give rise to the dangerous condition contemplated by the provision are such as to restrict that power. The court should only intervene where it is established that a negligent act or omission on the part of the roads authority caused or materially contributed to the dangerous condition.

 

71.  Take, for example, the suggestion that the proximity of traffic loading to the wall was a possible factor leading to the collapse. Traffic has been using the road since it was constructed. But what is the precise act/omission on the defender which makes it responsible for the existence of traffic on the road? Allowing any traffic? Allowing the buses to use the road during the diversion period? The pursuers may well have identified a causal factor but that only takes them so far. They then have to establish, on a balance of probabilities, that the existence of that factor is due to an act/omission on the part of the defender and, furthermore, that that act/omission is so culpable - negligence is a convenient test - that the notice ought to be declared invalid. Absent such a test, the court is imposing strict liability on the defender. In other words, traffic was a factor. The defender is responsible for deciding whether there is any traffic on the road. Ergo, the defender is responsible for the collapse of the wall. That is false logic.

 

 

DECISION

 

72.  In terms of Sheriff Hall's interlocutor of 6^th September 2011 pronounced after debate he determined that a referral in terms of s 91 (9) of the 1984 Act may raise any matter relevant to service of the Notice. Accordingly the merits of and the factual basis for the service of the Notice are open to challenge. His judgement ruled that it is open to the recipient of the Notice to argue that in particular circumstances the authority acted unreasonably or unjustifiably in serving the Notice. He rejected the defender's submission that the statutory power given by virtue of s 91(9) is administrative exercisable only in certain defined circumstances namely whether or not the recipient is the owner of the wall and whether or not a danger is presented by the wall, or in a more general sense the Authority itself contributed to the dangerous condition. He then allowed the parties proof on their pleadings.

 

73.  At the conclusion of the proof I understood the following issues fell to be determined; (1) does the Authority have the power in terms of s 91 (2) of the 1984 Act to serve notice in relation to the reinstatement of the Road; (2) in the event that issue (1) is answered in the negative does that invalidate the whole of the Notice; (3) is the specification of the works contained in the Notice sufficient and is the Authority entitled to impose conditions and (4) what effect the causation of the collapse of the Wall has upon the reasonableness or otherwise of the Notice.

 

 

74.  My reading of the interlocutor of 6^th September 2011 concurs with that of Mr Stewart's. The Sheriff held that a notice in terms of s 91(2) of the 1984 Act could not lawfully require the pursuers to reinstate the Road. That the Sheriff held as a matter of law. I do not understand then why it was considered that evidence required to be led on the issue. Accordingly that part of the Notice falls to be quashed.

 

75.  I do not accept Mr Stewart's submission that if the defenders do not have power to order reinstatement of the Road then the whole of the Notice falls to be quashed. If as, Mr Stewart submits, the Court is entitled to consider the whole of the Notice at large I fail to understand why the requirements and conditions contained in the Notice are not severable. It appears that he bases his argument on the practicability of repairing the Wall without repairing the Road. Mr Loftus in his evidence said that from a practical point of view the Wall and Road should be repaired at the same time and preferably by the same contractor. I did not understand him to say that the Wall could not be reinstated independently of the Road. From an engineering prospective there is no reason why the Wall could not be reinstated separately from the Road. In terms of s 91 (2) of the 1984 Act the defenders' power to serve a notice is restricted to the Wall. The quashing of an unlawful element of the Notice does not invalidate the remainder of the notice.

 

76.  Guidance as to the necessary content of a notice in terms of s 91(2) of the 1984 Act is to be found in s 136 of the Act. S136(a) provides that the notice shall " so far as is necessary and reasonably practicable specify the nature of any works which have to be carried out and of any requirements which have to be met." The Notice, in so far as it relates to the Wall, specifies that the necessary works are the replacement of the collapsed wall with a new wall and foundation. I agree with Mr Hawkes that the Notice complies with the statutory requirements. To go further is impracticable in this case. The nature of the engineering works necessary to reinstate the Wall was unknown at the time of service of the Notice. If the Notice is valid then it is for the pursuers to prepare and submit a design solution to the Authority for approval. Any such plan would thereafter be scrutinised in accordance with the relevant statutory regime.

 

77.  Mr Stewart contends that the 1984 Act does not empower the defenders to issue a notice subject to conditions. I do not agree. S136 (a) of the 1984 Act as outlined above empowers the Authority to include in a notice "...any requirements which have to be met". What are said to be conditions in the notice are no more than requirements. It may be unfortunate that they are described as conditions rather than requirements but their description does not invalidate them.

 

78.  The causation of the collapse is the matter which formed the meat of the proof. Many days were spent in evidence examining this issue. Before considering that matter I should say that I hope that the expert witnesses do not think that I have given their evidence short shrift in my narration and consideration of it. The reason for brevity is that ultimately they all came to the same conclusion. That conclusion being that no single trigger caused the collapse of the Wall. A number of factors can be said to have contributed to its demise and the only real dispute arose as to what weight the experts attached to these factors.

 

79.  I considered Alan Baker to be the most helpful of the expert witnesses and where his evidence contrasts with the other experts preferred his. It is clear that the Wall as it stood at date of collapse was not fit for purpose. That purpose was to support a relatively busy road over which significant traffic passed, including historically buses. It is clear that if a wall was to be designed to present day engineering standards it would bear little resemblance to the Wall. In fact if it were built today it would not be built in unreinforced random rubble stone. Prior to collapse the Wall was too thin from top to bottom. I accept Mr Baker's analysis that the thinness of the Wall was the fundamental reason for its collapse. I also accept his opinion that as a result of its design and the stresses upon it the Wall was a collapse waiting to happen.

 

80.  The inevitability of the collapse was hastened by the following factors; (a) the area of collapse forms part of a 15.5 metre unsupported area and at the point where a bulge was identified some considerable time prior to collapse; (b) the Wall was poorly constructed in comparison to walls adjacent to it;(c) the removal of crosswalls around 1990 and subsequent failure to fill the pockets created by removal of joists put the Wall under pressure; (d) the use of the Road by vehicular traffic including buses put pressure upon the Wall. While I accept there was a significant period of time between the last bus using the Road and its collapse, the effect of vehicular traffic over the Road cannot be ignored; (e) penetration of water from the Road combined with freeze/thaw dynamics. While this is a factor, I do not consider it a significant factor as the camber of the Road should take water away from the Wall; (f) the backfill material of the Wall is cohesionless and subject to movement and settlement. That movement placed further pressure on the Wall; (g) while I accept that ground borne vibration caused by vehicular traffic must in some way have been a contributory factor I am unable to put much weight on it as the evidence was at best anecdotal. No empirical evidence was led to support the contention. The fact that the Road is constructed in smooth tarmac and free from speed bumps reduces traffic vibration.

 

81.  I accept Mr Stewart's submission that the factors contributing to the collapse of the Wall are not attributable to the pursuers. While in most of the inspections carried out by the defenders some signs of deterioration were noted, the pursuers were never called upon to take any action. Most of the reports mention minor cosmetic damage.

 

82.  Bearing in mind that the inspections of the Wall were carried out by the defenders in order to ascertain whether or not there were any defects which may endanger the Road under its control the extent of the inspections and the subsequent reports give me cause for concern. It was explained in evidence by Alan Houliston that all of the inspectors were qualified Civil Engineers or Clerk of Works with HNC qualifications in engineering. All were said to have a working knowledge of The Bridge Inspection Manual which details how to carry out inspections, provides examples of defects and how to classify them. It must have been apparent to those who inspected the Wall that it supported a busy public road. It must or should have been apparent to the inspectors that the demise of the Wall would lead to the loss of the Road. It must have apparent to the inspectors that a collapse in the Wall may endanger to the public. Over the period July 1998- August 2009 the bulge was noted as being present in 1998 and thereafter not noticed until 2005. The bulge should have alerted the inspectors to a weakness in the Wall. As Alan Baker put it good engineering practice dictates that a core drill should have been undertaken to ascertain the depth of the Wall. Had that been done then the "collapse waiting to happen" may have been identified and avoided. Any remedial work may well have been significantly less costly than the estimate for reinstatement.

 

83.  Ultimately I understood both Mr Stewart and Mr Hawkes to agree that I was entitled to consider the reasonableness of the Notice when determining whether or not to quash it. The difference between them was that in Mr Hawkes submission I would have to find an act or omission on the part of the defenders which caused the demise of the wall. He went further and submitted that the act or omission would have to be so culpable, akin to negligence, as to render the defenders' ex facie power to issue a notice as unreasonable. The absence of such a test would impose a strict liability on the defenders. The pursuers in Mr Hawkes submission had failed to show that the causal factors of the collapse can be linked to any such act or omission on the part of the defenders.

 

84.  I am satisfied that I am entitled to apply a reasonableness test in considering whether or not to quash the Notice. I do not accept Mr Hawkes submission that I must find some act or omission on the part of the defenders that can be labelled culpable. Rather I am of the opinion that I am entitled to look at the whole facts and circumstances of events leading up to the collapse of the Wall. Adopting that approach ensures that there is no strict liability on the defenders or for that matter the pursuers. It also ensures that each case will turn on its merits.

 

85.  I take as the starting point the fact that the Wall is in the ownership of the pursuers. That may have been lost on the pursuers prior to the collapse of the Wall. What was clearly lost on them is the fact that it was a retaining wall and the consequences for them of ownership. That is something that in time they may have to revisit with their legal advisers. No doubt they will have ringing in their ears the evidence of Michael Loftus when he said that "Never in a million years would I buy a house with a retaining wall".

 

86.  With ownership comes the responsibility of maintenance and repair. That responsibility is underlined in the 1984 Act and it entitles the defenders to either force by way of notice the repair to a retaining wall or to repair the wall and seek reimbursement. On one view, Mr Hawkes', I could simply leave it there and refuse the crave to quash the Notice. However I have to balance the responsibility upon the pursuers with a number of important factors to determine whether or not the notice can be said to be reasonable.

 

87.  The first factor is the use of the Road and the benefit the defenders derive from the Wall. The Road is a busy thoroughfare through Dysart. It carries vehicular traffic and until shortly before the collapse public transport. Refuse lorries and other public utility vehicles use it. The defenders have a responsibility to manage and maintain the Road and to keep it in a reasonably safe condition. Central to the safe keeping of the Road is the support provided by the Wall. It is for good reason that a register of retaining walls is kept by the defenders and an inspection regime is in force. That inspection regime however failed to understand the significance of the bulge upon the stability of the Wall. The bulge was identified as early as July 1998. It, along with the rest of the Wall, was visually monitored from then on. The bulge seems to have either disappeared or been unnoticed in some inspections. Given the importance of the Wall to the Road it is my opinion that more detailed tests should have been carried out to determine what, if any, danger the bulge presented. It was known to the defenders' engineers that the Wall was of random rubble construction. It was known that that type of construction was unsuitable for the Walls purpose and that the Wall would not meet modern design standards. In these circumstances it would be appropriate to properly examine the Wall to discover its fitness for purpose. That examination should include a test bore to determine the thickness of the Wall. I am supported in this view by Mr Alan Baker who described such action as "good engineering practice". Had that been done then it is possible that the collapse could have been avoided.

 

88.  The second factor is the various causes put forward for the collapse. I do not intend to repeat these other that to note that each expert was of the opinion that the nature of the backfill was an important factor in the collapse. The backfill is entirely in the ownership of the defenders. The pursuers have no control over the material behind their wall or the use of the Road. There is no doubt that over the years, albeit many years prior to the collapse that the Road has been disturbed by the defenders and utility companies.

 

89.  It is of significance is that the defenders have in no way contributed to the collapse of the Wall by act or omission.

 

90.  Had the inspection regime been more rigorous then it would have identified the failings in the Wall and remedial action taken to prevent collapse. It is of note that the defenders had an opportunity to consider the strength or weakness of the Wall for its purpose when it issued the building warrant 6/2/11 of process in 1991. It did not and as Mr Stewart points out Dr McLennan was surprised that the opportunity to take account of the strength of whole length of the wall was not taken.

 

91.  Section 91(2) of the 1984 Act entitles the defenders to serve notice upon an owner of a retaining wall which constitutes a danger to the road requiring him to "carry out such work as will obviate the danger". It is clear from the defenders' evidence that simple reinstatement of the Wall is not an option that will be approved by the defenders. Reinstatement would simply put the Wall back in the position it was pre-collapse, namely a collapse waiting to happen. Rather the Authority expect and will approve nothing less than the Wall being in effect rebuilt to present day engineering design standards. The preferred method as spoken to by Mike Loftus being the use of piling. Using that method of reconstruction the cost is roughly and conservatively estimated at in excess of £200,000. In effect the defenders secure a significant improvement to their roads infrastructure at no cost to them.

 

92.  It is within the discretion of the defenders to pay for or contribute to the remedial works. They have chosen not to exercise that discretion. I find that decision unreasonable given the history of events leading to the collapse. I put the question of whether or not it would have taken the same attitude if a JCB driven by one of its employees had caused the collapse to Dr McLennan. Subject to the legal niceties of vicarious responsibility the answer appeared to be no. I agree with Mr Stewart's submission that Dr McLennan appeared to misunderstand the causes of the collapse when he authorised service of the Notice. He also appeared intransigent to any contributory factors at the hands of the defenders which may have contributed to the collapse.

 

93.  For these reasons I have come to the conclusion that service of the Notice is unreasonable and falls to be quashed. It should not be interpreted that I consider that the defenders should meet the full cost of the repair work. I do not, but to expect the pursuers to do so is entirely unreasonable. It is disappointing to note that, on the evidence, no meaningful discussions/negotiations took place in an attempt to reach an amicable agreement between the parties. As a result a considerable expense has been incurred.

 

 

 

 

 

 

Sheriff

Tayside Central and Fife at Kirkcaldy

24^th August 2012