ALEX McWATTERS v INVERCLYDE COUNCIL
SHERIFFDOM OF NORTH STRATHCLYDE AT GREENOCK
2014SCGRE56
J U D G E M E N T
of
Sheriff Derek J. Hamilton
in causa
ALEX McWATTERS,
Pursuer
against
INVERCLYDE COUNCIL, a local authority and in terms of the Local Government (Scotland) Act 1994, having its principal office at Municipal Building, Clyde Square, Greenock, PA15 1LY
Defender
Court Reference No B312/12
GREENOCK: 20th August 2013
Act: Mr McKendrick, Solicitor, instructed by Maitlands, Solicitors, Greenock
Alt: Mr Barne, Advocate, instructed by Inverclyde Council, Greenock
SHERIFFDOM OF NORTH STRATHCLYDE AT GREENOCK
J U D G E M E N T
of
Sheriff Derek J. Hamilton
in causa
ALEX McWATTERS,
Pursuer
against
INVERCLYDE COUNCIL, a local authority and in terms of the Local Government (Scotland) Act 1994, having its principal office at Municipal Building, Clyde Square, Greenock, PA15 1LY
Defender
Court Reference No B312/12
GREENOCK:
1. This is an Appeal by Summary Application in terms of Section 129 of The Housing (Scotland) Act 1987. The Pursuer seeks revocation of a Demolition Order, or alternatively a suspension of that Order.
2. This action is one of six Proofs calling before me, all in relation to Closing Orders and Demolition Orders made by Inverclyde Council in respect of properties within the Clune Park area of Port Glasgow. The same agents act for the various Pursuers, and the Defenders are represented by the same counsel. It was agreed that this appeal, being case reference B312/12, should proceed to Proof, and that case reference B313/12 would be bound by the decision in this case. The other four cases would be heard on a different date, with one of those cases proceeding as the lead case, and with the other three cases being bound by the decision in the lead case.
HISTORY
3. The Pursuer is the owner of a flatted dwelling house at Flat G/1 3 Bruce Street, Port Glasgow. He purchased the property on or around 15 September 2011. The flatted dwelling house is one of eight flats which form the whole property at 3 Bruce Street, Port Glasgow. At the time of the Pursuer’s purchase, the flat at Flat G/1 3 Bruce Street, Port Glasgow was subject to a Closing Order which had been made by the Defenders, Inverclyde Council, on 10 May 2011. No appeal had been lodged against the making of the Closing Order. On 28 August 2012, Inverclyde Council made a Demolition Order in respect of the whole building comprising of eight flats at 3 Bruce Street, Port Glasgow. In this Summary Application the Pursuer appeals against the making of that Demolition Order, and further, asks that the Demolition Order be suspended to enable the Pursuer to carry out work to the whole building to bring it up to the tolerable standard, so that the Demolition Order can be revoked.
LEGISLATION
4. A Closing Order is made under Section 114 of The Housing (Scotland) Act 1987. Section 114 (1) provides;
“Closing order.
S.(1)Where a local authority, on consideration of an official representation or a report by the proper officer or other information in their possession, are satisfied that any house does not meet the tolerable standard and that it ought to be demolished and— .
(a)the house forms only part of a building, and .
(b)the building does not comprise only houses which do not meet the tolerable standard, .
the local authority may make a closing order prohibiting the use of the house for human habitation.”
5. Closing Orders can be made where a Local Authority is satisfied that any house does not meet the tolerable standard and that it ought to be demolished. A Closing Order can be made where a house forms only part of a building and the building does not comprise only houses which do not meet the tolerable standard. The Defenders made such an Order in respect of Flat G/1 3 Bruce Street, Port Glasgow on 10 May 2011.
6. Section 117 of the Act enables a proprietor to give within certain time limits, an undertaking that within a specified period he will carry out such works as will in the opinion of the Local Authority bring the house up to the tolerable standard. If such an undertaking is accepted by the Local Authority the Local Authority issues a Suspension Order suspending the Closing Order or, as the case may be, a Demolition Order.
Section 117 provides;
“Undertakings to bring up to tolerable standard and suspension order.
S.(1)Where a closing order or a demolition order has been made in respect of a house or building and not revoked, any owner of the house or building, or any person holding a heritable security over it, may give to the local authority, within a period of 21 days from the date of service of the order or such longer period therefrom as the authority may, either during or after the expiry of the 21 days, determine to be appropriate, an undertaking in writing— .
(a)that he will within a specified period carry out such works as will, in the opinion of the local authority, bring the house or, as the case may be, all the houses in the building, up to the tolerable standard; or .
(b)in the case of a building in respect of which a demolition order has been made, that no house in the building will be used for human habitation (unless at any time all the houses therein are brought up to the tolerable standard and the local authority agree that they have been so brought). .
(2)If an undertaking is so given the local authority shall as soon as may be either— .
(a)accept the undertaking and make in respect of it a suspension order suspending the closing order or, as the case may be, the demolition order, or .
(b)reject the undertaking and serve on the person who gave the undertaking notice that they have done so. ……”
Section 129 of the Act provides ;
“Appeals.
S.(1)Subject to the provisions of this section and subsections (2) [F1to (7)] of section 324 any person aggrieved by— .
(a)a closing order made under section 114 or section 119 or a refusal to determine such a closing order; .
(b)a demolition order or a refusal to determine a demolition order or a resolution under section 125; ……..
…..may appeal to the sheriff by giving notice of appeal …….
(3)On an appeal under paragraph (a) or paragraph (b) of subsection (1), the sheriff may consider any undertaking such as is specified in relation to a closing order or a demolition order, as the case may be, in section 117 and, if he thinks it proper to do so having regard to the undertaking, may direct the local authority to make a suspension order under that section..”
7. In his Summary Application, the Pursuer firstly craved a revocation of the Demolition Order made by the Defenders on 28 August 2012 and, secondly, in the alternative asked the court to impose a suspension order in accordance with Section 117 of the Act, suspending the Demolition Order.
8. Section 324 of the Act provides;
“Procedure on applications and appeals to sheriff.
……(4)The sheriff in deciding an appeal under this Act may make such order as he thinks just.
(5)Any such order shall be final.
(6)In the case of an appeal against a notice given or an order made by a local authority, the sheriff may either confirm, vary or quash the notice or order.”
9. I have no power therefore to revoke the Demolition Order but I can confirm, vary or quash the order. Further, I have no power to impose a suspension order but, in terms of Section 117, I do have power to order the Council to issue a suspension order. The Pursuer’s agent accepted that was the position.
HEARING
10. The Pursuer was represented by Mr McKendrick, Solicitor, and the defender was represented by Mr Barne, Advocate. The Pursuer led one witness, Mr Rajinder Samrai, and the Defenders led one witness, Drew Hall, Service Manager, Inverclyde Council. I was somewhat surprised that the Pursuer did not give evidence.
11. Parties had helpfully prepared a detailed Joint Minute of Admissions and that formed number 10 of process. It is not necessary for me to narrate the terms of the Joint Minute.
12. In evidence, I was told that the Defenders had a plan to regenerate the Clune Park area of Port Glasgow. The Clune Park area has a number of dilapidated and vacant properties. The property at 3 Bruce Street, Port Glasgow lies within the Clune Park area. The Defenders’ plan to redevelop the area was contained within production 6/1 for the Defenders, a document entitled “Proposal: Regeneration Plan for the Clune Park area, Port Glasgow, May 2011.”
Pursuer’s Case
13. The Pursuer did not give evidence. On behalf of the Pursuer evidence was led from Mr Samrai. He said he was the Pursuer’s property manager. He said that an undertaking had been given to the Defenders that the whole building, of which flat G/1, 3 Bruce Street, Port Glasgow formed part, would be brought up to the tolerable standard. The plan was to provide rented accommodation for the local community. Mr Samrai was critical of the Local Authority. He said there was no realistic regeneration plan as the Local Authority had no funds to implement same. They had been dragging their heels for some years. He wished the Demolition Order in respect of 3 Bruce Street, Port Glasgow suspended to enable him, on behalf of the Pursuer, to bring the whole building up to the tolerable standard.
Defender’s Case
14. Mr Drew Hall gave evidence on behalf of the Defenders. He is the Council’s Service Manager for Community Safety and Wellbeing. He gave evidence about the Council’s plan for regeneration of the Clune Park area. Mr Hall said the Council’s plan was to demolish a significant number of houses within the Clune Park area and then redevelop the area. Because of financial constraints this plan could not be supported by the Scottish Government. A phased plan was then put in progress. That plan was to re-house the residents within the Clune Park area in another area of Port Glasgow. Re-housing was the Council’s priority. The Council would then seek to demolish the vacant properties. They would obtain authority to do so by either serving Closing Orders and then Demolition Orders, or by securing the properties through negotiation with the owners, or by using Compulsory Purchase powers. Mr Hall’s evidence about the Defenders’ plans for the area was supported by the various productions lodged by the Defenders, particularly those contained within the First and Second Inventories, 6/1 and 6/2 of process.
15. Mr Hall explained that where an individual house fell below the tolerable standard as statutorily defined, the Council would serve a Closing Order in respect of the house. In terms of Section 114, a Closing Order has the effect of prohibiting use of the house for human habitation. Where in a building comprising more than one dwelling house, all the dwelling houses within the building do not meet the tolerable standard, the Council can make a Demolition Order. The Council can only make a Demolition Order where all of the properties in the building fall below the tolerable standard. If any one property is above the tolerable standard the Council cannot proceed by making a Demolition Order. If they wish to demolish the building they require to take steps to negotiate the purchase of any particular property which meets the tolerable standard with the owner, or alternatively proceed under Compulsory Purchase measures.
16. Mr Hall explained that if after a Closing Order is served, the proprietor brings the property up to the tolerable standard and then applies to the Local Authority for the Closing Order to be revoked, the Council is obliged in terms of Section 116 of the Act to revoke such an order. This means that prior to a Demolition Order being made, if any one of the proprietors whose properties in the building are subject to a Closing Order, brings their particular property up to the tolerable standard, the Local Authority will be obliged to revoke the Closing Order in respect of that one particular property. That will have the effect of preventing the Local Authority from proceeding to make a Demolition Order in respect of that building, unless they secure ownership of that property either through negotiation with the owner of that particular flat, or through use of compulsory purchase powers.
17. Where a Demolition Order has been made, however, that Demolition Order can only be revoked in terms of Section 116, if all the properties within the building are brought up to the tolerable standard. If all the properties are brought up to tolerable standard and application is made to the Local Authority, again in terms of Section 116, the Local Authority is obliged to revoke the Demolition Order.
Submissions
Pursuer
18. Mr McKendrick for the Pursuer, submitted that the Pursuer had given undertakings to the Council to bring the building at 3 Bruce Street up to the tolerable standard. The Council had unreasonably refused the undertakings. There was a legitimate plan by the Pursuer to renovate all the properties within the building and to bring them up to the tolerable standard. The Pursuer’s manager, Mr Samrai, was an experienced property agent who had experience of renovating many properties and bringing them up to the tolerable standard. The Defenders were proceeding very slowly with their regeneration plan, and to suspend the Demolition Order for a period of say six months would not unduly prejudice the Defenders.
Defenders
19. Mr Barne for the Defenders lodged a note in support of his submissions. He made a number of points;
[1] When the original Closing Order for Flat G/1 3 Bruce Street, Port Glasgow was made no appeal was taken against the Order, and no undertaking was given by the Pursuer or by any prior owner. Mr Barne submitted that in terms of Section 120 of the Act, as a Demolition Order had been made the undertaking procedure described in Section 117 was no longer available to the Pursuer. Mr McKendrick countered by saying there was no evidence that the Closing Order had been revoked prior to the Demolition Order being made, and therefore the provisions of Section 117 were not excluded.
[2] The original undertaking provided in September 2012 was inadequate in that it did not specify the works which would be undertaken. Further, the undertaking was only to bring the particular flat G/1 3 Bruce Street, Port Glasgow up to a tolerable standard, and not all of the flats within the building. Bringing one flat up to the tolerable standard would not result in the Demolition Order being revoked.
[3] The further undertaking given by the Pursuer, by letter dated 05 April 2013, was not made in accordance with Section 117 since it did not set out the specified period within which the work should be carried out. Further, the undertaking appeared to have been made by the Pursuer in relation to flats which he was not the owner of, and in relation to which Demolition Orders had been made without any appeals having been taken. Again, the undertaking did not set out the works which would be done.
DISCUSSION
20 During this hearing many statutory interpretation points regarding, in particular, undertakings by the Pursuer were taken by Mr Barne for the Defenders. For reasons which will follow I do not consider it is necessary for me to decide on many of those statutory interpretation issues. Mr Barne referred me to the case of Gilchrist v Glasgow Corporation 1934 SLT Sheriff Court reports 171. That case dealt with the exercise of judicial discretion in respect of statutory provisions very similar to those in issue here. That case decided that it was appropriate for the court to decide de novo whether or not an undertaking given should be accepted. Putting to one side the various issues raised by Mr Barne as to whether or not the undertakings given in September 2012 or in April 2013 were statutorily compliant and whether it was now competent to consider them, I am of the view that I am entitled de novo to consider any undertaking (and I use the word undertaking in the broadest sense) by the Pursuer to bring the properties up to the tolerable standard. In order for the Demolition Order to be suspended, however, all properties within the building must be brought up to tolerable standard.
21 The Pursuer’s first plea in law was in the following terms:
“1 The defenders having acted contrary to natural justice et separatim having exercised their discretion in an unreasonable manner, the pursuer are (sic) entitled to Decree as first craved”
22 Mr McKendrick accepted that the Defenders had not acted unreasonably or contrary to natural justice in making a Demolition Order, and advised that he was no longer insisting on his first plea in law. I therefore repel the Pursuer’s first plea in law.
23 The Pursuer’s second plea in law is directed towards having the Demolition Order suspended for a set period, by seeking an order of the court ordering the Defenders to make a Suspension Order. Although the plea in law does not quite match the Second Crave for the Pursuer, it was generally accepted that what I was being asked to do was to order the Defenders to make a suspension order suspending the Demolition Order. It is for the Pursuer to set out the basis on which he asks for that to happen.
24 As I have observed, the Pursuer did not give evidence. Evidence was given by his property manager, Mr Samrai. Mr Samrai’s evidence seemed to me to be more about what his vision for the property was rather than the Pursuer’s. Mr Samrai gave much evidence about his own circumstances and experience, and, what appeared at times to be almost a philanthropic plan to provide housing for the homeless.
25 Mr Samrai’s plan on behalf of the Pursuer however completely lacked detail. He said that there was an undertaking to bring all of the properties within the building at 3 Bruce Street up to the tolerable standard. If that was achieved then the Demolition Order would then be revoked. In support of the plan, reference was made to Pursuer’s production 5/2/6, being a Schedule of Works prepared by Alexander Miller, Miller Surveying Services, dated January 2013. That Schedule of Works was of little evidential value. It was a Schedule of Works to restore and renovate a typical two apartment flat. It did not address specifically the Pursuer’s flat at G/1 3 Bruce Street, Port Glasgow. It did not address specifically any of the issues to be found in G/1 3 Bruce Street, Port Glasgow, nor indeed in any of the other flats within the building. It is not clear if the Pursuer’s property was at any time inspected by the surveyor. In contrast, the Pursuer’s property had been inspected on several occasions by Mr Hall and by other employees of the Defenders. Mr Hall was therefore in a position to give evidence on the state of the premises and to give his view on the report by Miller Surveying Services. Mr Hall in evidence said the property had been inspected on the Defenders’ instructions and had been found to have structural cracks. The report by Miller Surveying Services did not address any structural issues. It did not address insulating the property or dealing with the dampness within the property. The costings contained within the schedule, although according to Mr Hall at reasonable rates, were to my mind meaningless as they did not relate to the Pursuer’s flat and did not deal with many of the issues noted above. The Pursuer failed therefore to provide detailed and credible costings of the sums required to bring the property at Flat G/1, 3 Bruce Street, Port Glasgow up to the tolerable standard.
26 The Demolition Order can only be revoked if the whole building is brought up to the tolerable standard. Mr Samrai said in evidence that he would do whatever was necessary and at whatever cost to bring the whole building up to the tolerable standard. I simply do not accept that. The building is in a state of serious disrepair and is affected by dry rot and fire damage. It has been empty and open to the elements for some years. There may well be structural damage. It would be folly to spend potentially enormous sums of money on a property only perhaps to find that the property was valued at much less than the sums spent. Not only were there no proper costings for the work required to the building, there was no valuation in process of the likely value of the property once renovated to the tolerable standard. A valuation of the property as renovated may have given some clue as to whether it was reasonable to incur the sums proposed to be expended on the property. Not only was there no such valuation, there was no evidence of any proper costings of the sums likely to be expended on the property.
27 Mr Samrai said that he had authority from all of the owners of the flats within 3 Bruce Street to proceed with the renovation of the building. His evidence on the exact arrangements for the renovations of the building, however, was vague. He said that he would fund the renovation of the property and that he would then invoice the various owners of the flats. It wasn’t clear what the Pursuer’s financial involvement in this plan was. When Mr Samrai was asked how he would recover the sums due to him his evidence was vague. There was no evidence other than from Mr Samrai, that he had authority from the other owners. Again, I would comment that Mr Samrai’s evidence appeared to concentrate on his plans for the building rather than the Pursuer’s plans. I was not satisfied that the Pursuer had proved he had the authority of the other proprietors in the building to proceed with a renovation, or indeed had the finances to do so. My comments in relation to the renovation costs and the extent of the renovation of flat G/1, 3 Bruce Street, are simply multiplied when considering that all of the flats have to be renovated to the tolerable standard in order for the Demolition Order to be revoked.
28 In relation to the time scales which might be involved in renovating the building, again Mr Samrai’s evidence was vague. He suggested perhaps six months, then said it would depend on the number of workmen put on the project.
29 I find the Pursuer has failed to prove that he has the authority of the other owners in the building authorising him to proceed with a renovation at an open-ended cost on their behalf. I am not satisfied the Pursuer has shown that he is in a position financially or practically to complete a renovation of the whole building. The Pursuer’s plan as put forward by Mr Samrai is wholly lacking in specification and detail, and is wholly lacking in credibility.
30 Even if the Pursuer had been able to prove that he had the authority of all of the owners in the building to proceed with the renovation work, and if he had provided a detailed specification of costs for all of the flats and for the common areas, he would still require to state some ground on which the Court should exercise its discretion in his favour and order the Defenders to suspend the Demolition Order.
31 The Closing Order in respect of the flat at G/1 3 Bruce Street was not appealed. The flatted property was apparently bought by the Pursuer for re-development. No redevelopment has taken place, and the flat has been empty and has been allowed to deteriorate since its purchase by the Pursuer. The Pursuer bought the flat on 15th September 2011. The Demolition Order was not made until 28th August 2012. The Pursuer had that period, from the date of his purchase until the making of a Demolition Order, to bring the flat up to the tolerable standard. If he had done so that would have avoided the Demolition Order being made. Once the Demolition Order was made the Pursuer, in order to have the order revoked, had to be in a position to bring all of the flats within the building up to a tolerable standard. The Pursuer’s case is that he has authority from the other owners to do so, and that is his intention. The Defenders letter of 28th January 2013 to the Pursuer’s agent, 5/2/7 of process, told the Pursuer in no uncertain terms that it was for him to address the issue of the necessary works required to bring the building up to the tolerable standard. Despite that, the Pursuer did no work. The lodging of an appeal against the Demolition Order, meant the Defenders were prohibited from taking any further action in the meantime in relation to the Demolition Order. This proof hearing was fixed in April 2013. That was some four months before the date of the Proof. The Pursuer therefore, if he had the authority of all the proprietors as he claimed, had a period of at least four months, if not longer, to bring the building up to the tolerable standard and to make application to have the Demolition Order revoked. He did not do so. What he did was give a conditional undertaking by letter dated 5th April 2013, 5/2/8 of process. That undertaking was conditional upon the Defenders sisting these proceedings. A further letter dated 28th April 2013, 5/3/9 of process, sought some assurances from the Defenders. The Pursuer could have proceeded, but he didn’t. He had already been told by the Defenders in January 2013 that it was a matter for him and not for the Defenders to decide what steps to take to bring the property up to the tolerable standard, and then to make application in terms of the Act for revocation of the Demolition Order. He now however asks the court to order a suspension of the Demolition Order to enable him to bring the building up to the tolerable standard within a period of six months. The Pursuer failed to address why, when he has failed to do anything to date to address the repairs required to the building, I should believe he would now be able to implement such a plan. The Pursuer failed to do so between September 2011 and August 2012, when the matter was entirely within his own hands, from January 2013 when the Defenders’ position was made quite clear, and between April 2013 and August 2013 when he said he had the authority of the other owners in the building. He did not address why I should exercise my discretion in his favour and in so doing interfere with the Council’s plans for regeneration of the area. I was referred by Mr McKendrick to the case of James McDonald and Another v Midlothian District Council, Edinburgh Sheriff Court, 27/9/83 where the sheriff commented when referring to the earlier Housing (Scotland) Act 1969 in relation to demolition orders, “The Act is concerned with houses and their material standards. What must be at stake, however, in many cases where demolition orders are under consideration, is homes and human happiness”. The circumstances in that case are very far removed from the present case. That case involved a property which in its form and state was like many other properties in Scotland, and was a property which had been habited by the Pursuers for in excess of twenty years. By contrast the flatted property at G/1 3 Bruce Street, Port Glasgow, which is the subject of the present proceedings, was bought by the Pursuer in the knowledge that it already had a Closing Order on it, and was a property which had not been occupied for some time prior to the making of the Demolition Order. The Pursuer has provided no good reason why I should interfere with the Defenders’ conclusion in support of their regeneration plan that the property ought to be demolished.
DECISION
32 I therefore repel the Pursuer’s First and Second pleas in law. I Sustain the First and Second pleas in law for the Defenders and confirm the Demolition Order. In respect of the Defenders’ Third plea in law in relation to expenses, I put the matter out for a hearing and invite parties to address me on this.
Derek J. Hamilton
Sheriff of North Strathclyde at Greenock
20 August 2013