A Duty to Act Swiftly: Delay, Dangerous Buildings and Expenses in Academic Judicial Review under Section 29 of the Building (Scotland) Act 2003

1. Introduction

This commentary examines the Opinion of Lord Braid in the case Petition of Aldi Stores Limited for Judicial Review of a decision to refuse or delay performing its statutory duty under section 29 of the Building (Scotland) Act 2003, decided by the Outer House of the Court of Session on 27 November 2025 ([2025] CSOH 110, P892/25).

The case arises from a dispute between:

Petitioner: Aldi Stores Limited – the operator of a supermarket in Patrick Street, Greenock.
Respondent: Inverclyde Council – the local authority with statutory responsibilities under the Building (Scotland) Act 2003.

Immediately adjacent to Aldi’s store is the former Glebe Sugar Refinery, a derelict, listed building from which masonry had fallen into Aldi’s car park. Aldi sought to compel Inverclyde Council to perform what it said was the Council’s mandatory duty under section 29 of the Building (Scotland) Act 2003 to serve a dangerous building notice in respect of the refinery building.

The Council initially took only interim protective measures (cordons), delayed for many months in engaging substantively with the owners, and eventually agreed to commission a structural engineer’s inspection. However, it did not serve a dangerous building notice until 23 September 2025, shortly after Aldi had raised judicial review proceedings on 29 August 2025 and after the petition had been served.

By the time of the hearing, the only outstanding issue was liability for expenses (costs). The petition was effectively academic (or otiose) in light of the service of the dangerous building notice. The central question was:

Who should bear the expenses of the judicial review where the respondent belatedly complies with the alleged duty after proceedings are raised?

To answer that, the court had to grapple with:

The content and timing of the statutory duty under section 29 of the 2003 Act.
The status and proper use of the Scottish Building Standards Procedural Handbook in guiding local authority conduct.
The application of the concept of a “reasonable time” to perform a statutory duty where the statute is silent on timescales.
The approach to expenses in academic judicial review, where the main practical aim of the petition has been achieved without a merits decision.

2. Summary of the Judgment

2.1 Procedural posture

Aldi raised a petition for judicial review seeking orders designed to compel Inverclyde Council to perform its statutory duty in terms of section 29 of the Building (Scotland) Act 2003 by serving a dangerous building notice.

After the petition was lodged (29 August 2025) and served (8 September 2025), Inverclyde Council served a dangerous building notice on 23 September 2025. Aldi’s practical objective was thus achieved. Both parties accepted that:

The petition should not proceed to a substantive determination on the merits.
Nonetheless, the court had to exercise its discretion on expenses, despite there being no substantive decision in the case.

The Council sought an order of no expenses due to or by either party. Aldi sought an order that the Council pay the petitioner’s expenses.

2.2 Core findings

Lord Braid held that:

The former Glebe Sugar Refinery was dangerous within the meaning of section 29 at least from September 2024 and remained dangerous throughout the relevant period.
The Council’s delay of nearly a year between first becoming aware of falling masonry and serving a dangerous building notice was unjustifiable.
Section 29 imposed a mandatory duty to serve a dangerous building notice “except where the danger has been removed” by urgent works under section 29(3). No such removal occurred here.
The Council’s reliance on protracted “negotiations” with the owners and on obtaining a structural engineer’s report did not excuse that delay.
By 29 August 2025 (the date of lodging the petition), the Council was in breach of its duty under section 29, or, at minimum, it was reasonable for Aldi to conclude that it was.
The Council’s correspondence with Aldi’s agents was at times inaccurate, dilatory, and lacking in candour.
Aldi was fully entitled to raise the petition when it did.

Therefore, although the petition was refused (as its purpose had been achieved), Aldi was held entitled to its expenses from Inverclyde Council.

2.3 The governing test for expenses in this context

In determining expenses where a judicial review has become academic, Lord Braid focused on:

“the question is: which party caused the litigation?” ([7])

This required examination of:

Whether the Council was in breach of its section 29 duty by the time the petition was lodged; and
Whether its stance and conduct in correspondence made it reasonable or unreasonable for Aldi to have to resort to litigation.

Given the court’s conclusions on both issues, the Council was found to have caused the litigation and was ordered to pay Aldi’s expenses.

3. Statutory Framework and Guidance

3.1 Section 29 of the Building (Scotland) Act 2003

Section 29 deals with dangerous buildings. In summary:

Section 29(1): Applies where it appears to a local authority that a building “constitutes a danger” to persons, the public, or adjacent buildings/places.
Section 29(2): The authority must carry out such work as it considers necessary:
- To prevent access to the dangerous building and any adjacent areas which appear dangerous due to the state of the building; and
- Otherwise to protect the public and adjacent persons/property.
Section 29(3): Where urgent action is needed to reduce or remove the danger, the authority may (after such notice to the owner as circumstances permit) carry out necessary work (including demolition) and recover expenses from the owner.
Section 29(6): Except where the danger has been removed by section 29(3) works, the authority must serve on the owner a dangerous building notice requiring specified works.

The scheme is thus twofold:

Immediate protective/urgent measures (erecting cordons, emergency works) under sections 29(2) and (3); and
Longer-term remediation via a dangerous building notice under section 29(6), unless the danger has truly been removed by earlier urgent action.

Lord Braid emphasised that section 29(6) is couched in mandatory terms (“must serve on the owner a notice”) and that this duty arises once:

The building appears to the authority to be dangerous; and
The danger has not been removed by works under section 29(3).

3.2 Section 30 and the nature of a dangerous building notice

Section 30 of the Act governs the content of a dangerous building notice:

The notice must specify the repair, securing or demolition work needed to remove the danger.
It must state dates by which the owner must begin and complete the works.
Failure by the owner to do the works is an offence, and the authority may itself carry out the works and recover the cost.

Thus, a dangerous building notice is the principal mechanism by which a local authority compels the owner to address the hazard, failing which the authority can intervene directly at the owner’s expense.

3.3 The Scottish Building Standards Procedural Handbook

The Scottish Building Standards Procedural Handbook (3rd ed) provides guidance to local authorities on their section 29 functions. While not law, it is treated by the court as a “useful guide” on proper practice.

Key provisions relied upon in the judgment include:

Section 10.2.2: Reinforces that the authority must carry out work necessary to prevent access to the dangerous building and dangerous adjacent areas.
Section 10.2.3: States that:
- Where urgent action is needed, the authority may carry out the necessary work and recover costs; but
- In most cases, the authority will serve a dangerous building notice.
Section 10.3.3: Emphasises that:
“Depending on the degree of risk and the simplicity of remedial work it may be possible for the local authority to negotiate a solution with the building owner without taking formal action…. For the local authority to consider such an arrangement it is imperative the owner agrees at once and confirms… that they will immediately arrange to undertake the measures required… However, an owner that fails to achieve the negotiated solution can expect the local authority to take action swiftly.” (emphases in original)
Section 10.3.5: In some cases, the degree of risk can be established only by further exploratory work.
Section 10.3.8: No notice is required if emergency work completely removes the danger with a long-term solution; otherwise, a notice must be served.

Lord Braid repeatedly contrasts these terms (“imperative”, “at once”, “immediately”, “swiftly”) with the Council’s conduct over nearly a year.

4. Analysis of the Judgment

4.1 The Chronology as a Foundation for Legal Evaluation

Lord Braid carefully reconstructed the timeline, illustrating repeated delays on the part of the Council:

September–November 2024: Reports of falling masonry, cordons erected. Aldi writes on 5 November 2024 pressing for urgent action. The Council’s reply of 11 November 2024 wrongly suggests that correspondence with the owners is ongoing when in fact no contact had yet been made.
December 2024–March 2025: Only “initial attempts” to contact owners; Storm Eowyn and other dangerous buildings. Aldi chases repeatedly. The Council states in March 2025 that it will instruct the owners to commission a façade survey; a letter is eventually sent to the owner to that effect.
April–July 2025: Aldi’s solicitors continue to press for a dangerous building notice and challenge the delay. The Council relies on difficulties with the owners (death of one, illness of another) and indicates it will instruct its own survey after the owner fails to produce one.
29 May 2025: Aldi supplies its own Technical Due Diligence (TDD) report, prepared after a January 2025 inspection, highlighting that the building is in a hazardous condition and on the Buildings at Risk Register as “high risk”. Aldi regards this as the date grounds for judicial review arose.
July–August 2025: The Council’s solicitor disputes any breach, saying the TDD report cannot be relied upon and insisting on the need for their own engineer’s report. Instruction is finally given on 4 August 2025. A site inspection occurs on 26 August.
29 August 2025: Aldi lodges the petition, the last day before the three-month time bar said to run from disclosure of the TDD report.
1 September–23 September 2025: The Council receives the engineer’s report on 1 September, service of the petition follows on 8 September, and the Council finally serves the dangerous building notice on 23 September.

This chronology underpins the court’s finding that the Council’s response was slow, inconsistent and reactive, in tension with both the statute and the Handbook.

4.2 Precedents Cited and Their Influence

4.2.1 City of Edinburgh DC v Co-operative Wholesale Society Ltd (1986 SLT (Sh Ct) 57)

This sheriff court decision interpreted the statutory predecessor to section 29, which was in similar terms. Lord Braid cites it, via Aldi’s submissions, for its explanation of the structure of the statutory scheme:

The first part of the provision dealt with situations where immediate action was called for (akin to section 29(3)).
The second part allowed for action that could safely wait a longer period, depending on the degree of risk.

The significance is twofold:

It confirms that the dangerous building regime has long been understood as a risk‑sensitive continuum: urgent works for immediate threats, and notices for more sustained remediation.
It supports the proposition that where risk is ongoing and substantial (falling masonry, documented hazardous condition), undue delay in serving a notice is inconsistent with the statutory purpose.

Lord Braid’s application of this understanding reinforces that section 29 does not license local authorities to leave known danger untreated for extended periods simply because temporary cordons are in place.

4.2.2 National Car Parks Ltd v Baird [2004] EWCA Civ 967

Although an English Court of Appeal decision, National Car Parks v Baird is treated as persuasive authority on a general public law question: how to assess compliance with a statutory duty where the statute is silent on timing.

Dyson LJ (as he then was) identified factors relevant to determining whether a duty has been performed within a reasonable time:

The subject matter of the duty and context in which it is to be performed.
The length of time taken to perform the duty.
The reasons for any delay.
Any prejudice caused (or likely to be caused) by the delay.

Lord Braid adopts this framework to evaluate Inverclyde Council’s performance of its section 29 duty, effectively incorporating these factors into Scottish public law reasoning in this context.

This is significant: Scottish courts often treat English public law jurisprudence as instructive where the principles are common, and this judgment provides a clear example of cross‑jurisdictional borrowing in the area of administrative delay and statutory duties.

4.3 Application of the “Reasonable Time” Framework to Section 29

Applying Dyson LJ’s four factors, Lord Braid reaches what he calls an “inexorable conclusion” that the Council should have served a dangerous building notice well before it did.

4.3.1 Subject matter and context

The duty concerns a building from which masonry has already fallen, exposing the public and Aldi’s customers to risk. This is a matter that demands expedition.

Section 29 is designed to protect public safety. As such, any discretion over timing is constrained by the need to act promptly once danger is apparent. Lord Braid stresses that the Council itself had accepted the building was dangerous by invoking section 29(3) emergency powers in November 2024.

4.3.2 Length of time taken

On any view, the period is lengthy:

About one year from the Council becoming aware of fallen masonry (September 2024) to serving the notice (23 September 2025); or
Just under eleven months from Aldi’s solicitors’ first formal letter (5 November 2024).

This is contrasted with the Handbook’s repeated language of action being taken “at once”, “immediately”, and “swiftly”.

4.3.3 Reasons for delay

The Council advanced various reasons:

The need to monitor the building and investigate whether it was structurally dangerous.
Storm Eowyn and competing demands from other dangerous building cases.
Complexities around the ownership (one owner deceased, the other seriously ill).
Efforts to negotiate a solution by encouraging the owner to commission a condition survey.
The decision to obtain its own structural engineer’s report.

Lord Braid accepts that some delay for investigation is legitimate but criticises:

Long periods of inactivity, especially the months before owners were even contacted.
An “unjustifiable degree of latitude” given to the owners in commissioning reports.
Reliance on a structure in the Handbook which did not endorse waiting nearly a year before serving a notice.
Focusing unduly on whether the building was structurally unsafe, instead of on the known danger from loose masonry.

He notes that section 10.3.3 of the Handbook envisages owner cooperation where the owner agrees at once and immediately arranges works, and envisages that if the owner fails, the authority will act swiftly. None of that describes the Council’s conduct.

4.3.4 Prejudice to Aldi

The prejudice is clear:

Part of Aldi’s car park was cordoned off for almost a year, reducing its usable space.
Customers and staff remained at risk from continuing dangers posed by the refinery building.

The combination of these four factors led the court to conclude that the Council had failed to perform its statutory duty within a reasonable time.

4.4 The Legal Effect of Emergency Action Under Section 29(3)

A crucial aspect of the reasoning is that by taking urgent action under section 29(3) in November 2024, the Council had effectively accepted that the building was a “dangerous building”.

Lord Braid puts it plainly:

“section 29(3) is engaged only where it appears to the local authority that the building constitutes a danger.” ([9])

Thus, the authority’s own conduct estops it from claiming that it did not yet consider the building dangerous. Yet:

No repairs were carried out to remove the danger.

The clear implication is that once an authority has invoked section 29(3), the default trajectory should be towards a dangerous building notice, unless and until it can genuinely say that the danger has been removed by the emergency works.

4.5 Misconception of “Dangerous Building”: Structural Unsafety vs Actual Risk

Lord Braid criticises the Council for treating section 29 as concerned only with whether the building was structurally unsafe, rather than whether it posed any danger within the statutory language (for example from falling parts).

The Council’s solicitor advocate had argued that further investigations were needed to determine whether the building was “structurally dangerous”. Lord Braid responds that:

The Act does not require a structural defect for a building to be described as dangerous.
The works ultimately required by the dangerous building notice were relatively limited – removal or repair of loose brickwork, render, glass, rainwater goods and window frames – i.e. exactly the sort of measures that could, and should, have been identified much earlier.

The case thus clarifies that:

The statutory concept of a “dangerous building” is wider than structural instability or risk of collapse.
Local authorities should not delay issuing a notice while seeking expert confirmation of structural failure, where danger from loose or deteriorated elements is already apparent.

4.6 Role and Limits of the Handbook

While the Council sought to rely on the Handbook to justify its extended engagement with the owners and its emphasis on survey evidence, Lord Braid draws a clear boundary:

Primary benchmark: The Council’s actions must be judged against the Act itself.
Secondary benchmark: Even against the Handbook’s standards, the Council’s behaviour fell short.

Key critiques include:

The Handbook’s permission to explore a “negotiated solution” assumes that the owner will agree to and arrange works at once. Delaying for many months while waiting for the owner to commission a survey is not what the Handbook contemplates.
Nothing in either the Act or the Handbook suggests that the local authority may defer its own statutory duty until the owner provides it with a condition report.
The Handbook envisages prompt action and does not endorse a delay approaching a year before issuing a notice.

The judgment therefore reaffirms that:

Non‑statutory guidance may inform, but cannot dilute or postpone, statutory duties.
Authorities remain the primary decision-makers on danger and necessary works; they cannot outsource that responsibility to owners.

4.7 Use of Aldi’s TDD Report and the Council’s Own Survey

Aldi commissioned a Technical Due Diligence report in January 2025, provided it to the Council on 29 May 2025, and relied on it as establishing the building’s hazardous condition.

The Council refused to rely on the TDD report because:

It contained a disclaimer prohibiting reliance by third parties.
The Council was not privy to the terms of instruction.
It pre‑dated Storm Eowyn and might not reflect the current position.

The Council subsequently commissioned its own report from structural engineers in August 2025, which was delivered on 1 September 2025. Aldi submitted that this report was in all material respects identical to its TDD report in concluding that the building was dangerous and required urgent work.

Lord Braid does not require the Council to have relied solely on the TDD report. However, he clearly treats it as at least an adminicle of evidence supporting the existence of danger, and as something that should have prompted more decisive action:

The TDD report confirmed ongoing hazards and the building’s high‑risk status.
Combined with the earlier reports of fallen masonry and absence of remedial works, it should have left little doubt that section 29 duties were engaged.

The judgment thus signals that:

While authorities need not unquestioningly adopt third‑party reports, they should give them appropriate weight, especially where consistent with known facts.
Insisting on a bespoke report as a precondition to acting may be unreasonable where danger is already well-evidenced.

4.8 Correspondence, Candour and the “Cause” of Litigation

Lord Braid criticises the Council’s approach to communication with Aldi’s solicitors on two main grounds.

4.8.1 Misleading or inaccurate statements

Examples include:

The early assertion (11 November 2024) that the Council was “continuing to … correspond with the building’s owners”, when in fact correspondence had not yet even begun.
Representations about when the Council’s own report would be instructed and received, which were not fulfilled.

Such inaccuracies tended to convey an impression of activity that was not in fact taking place.

4.8.2 Lack of openness and assurances

By late August 2025:

The Council’s solicitor indicated that the structural engineers would inspect on 26 August.
She questioned Aldi’s entitlement to see the resulting report, giving the impression that disclosure would be refused.
She signalled that she would be on annual leave over the critical period immediately before the judicial review time-bar expired.
No unequivocal undertaking was given that a dangerous building notice would be served following the report.

Lord Braid notes that:

“Even by 29 August 2025, the petition might have been averted had the respondent unequivocally undertaken to the petitioner that it would serve a notice; but it did not do so, in the knowledge that a petition for judicial review by that date had been threatened.” ([15])

Thus, the court concludes that the Council’s correspondence:

Failed to provide clear, candid communication about its intentions.
Contributed to Aldi’s justified perception that judicial review was the only realistic route to securing compliance.

4.9 Expenses in Academic Judicial Review: The Court’s Approach

Formally, the petition was refused because its purpose (service of a dangerous building notice) had already been achieved. There was no final decree compelling the Council to act, and no formal declaration of breach of duty.

However, Lord Braid’s approach to expenses effectively treats Aldi as the substantive victor:

Aldi’s aim – the service of a dangerous building notice – was met.
The Council’s late service of the notice did not obviate the impact of its prior delay.
The question became: who caused the litigation?

On the facts, the answer was:

The Council, by failing to comply with its section 29 duty within a reasonable time.
The Council, by adopting an unreasonable and non‑candid stance in correspondence, preventing Aldi from having confidence that lawful action would be taken without litigation.

Accordingly, Lord Braid held:

“the petitioner was fully entitled to lodge the petition, to secure that the respondent serve a notice, and that its decision to do so was caused by the respondent's approach to its section 29 duty. The petitioner is therefore entitled to recover its expenses.” ([16])

This establishes a clear principle for similar cases:

Where a public authority belatedly complies with a statutory duty only after judicial review proceedings are raised, it cannot necessarily avoid liability for expenses by rendering the petition academic.
The court will look behind procedural mootness to assess whose conduct made the litigation necessary, and award expenses accordingly.

5. Impact and Broader Significance

5.1 For Local Authorities: Time‑Critical Nature of Dangerous Building Duties

The judgment sends a clear message to local authorities across Scotland:

Once it appears that a building is dangerous and the risk is not removed by urgent works, the duty to serve a dangerous building notice arises and must be performed within a reasonable (and typically short) timeframe.
Protracted “monitoring” and protracted efforts to have owners commission reports cannot substitute for compliance where obvious dangers persist.
Authorities should not view s29(3) cordons and emergency measures as an open‑ended holding pattern; they are temporary, not a long‑term solution.
Resource constraints and competing priorities may explain short delays but do not justify near‑year‑long inaction where public safety is at stake.

Authorities must also be mindful that:

They are the primary decision‑makers; their duties cannot be abdicated to owners or outsourced wholly to external consultants.
They must maintain accurate, candid and constructive communication with affected parties; misleading assurances or unexplained delay may lead to adverse findings on expenses.

5.2 For Adjacent Owners and Occupiers (like Aldi)

For parties affected by dangerous neighbouring buildings, the case offers important reassurance:

They can expect local authorities to take timely and substantive action under section 29, not simply to cordon off areas indefinitely.
If the authority fails to act, and especially where:
- there is clear evidence of danger (e.g. falling masonry, expert reports), and
- the authority has been put on notice over a significant period without meaningful progress,
a judicial review may be justified.
Where the petition is raised reasonably and prompted by the authority’s failings, expenses may be recoverable even if the authority belatedly complies, rendering the proceedings academic.
The judgment implicitly endorses the use of independent technical reports as a means to evidence ongoing danger and put pressure on authorities to act.

5.3 For Public Law and Judicial Review in Scotland

Doctrinally, the decision is notable in several respects:

It applies and endorses the “reasonable time” framework for performance of statutory duties (drawn from National Car Parks v Baird) in the Scottish context.
It shows that the Court of Session will be prepared to treat such duties as amenable to judicial review for delay, even where the statute does not specify a timeline.
It illustrates the court’s willingness to look closely at the substance of a public authority’s conduct, including its correspondence, in deciding expenses where the case has become academic.
It reinforces that practical success (i.e. achieving the intended outcome through litigation pressure) can justify an award of expenses, even in the absence of a formal merits decision.

6. Complex Concepts Simplified

For ease of understanding, some of the key legal concepts in the judgment can be explained as follows:

Judicial review: A procedure by which the Court of Session supervises the legality of decisions and actions of public bodies. The court does not re‑take the decision but checks whether the authority acted lawfully, within its powers, reasonably, and fairly.
Statutory duty without a time limit: Sometimes a statute says that a public authority “must” do something but does not say when. Courts then imply that it must be done within a reasonable time. What is “reasonable” depends on the importance of the duty, the context, the duration of any delay, reasons for delay, and any prejudice caused.
Dangerous building (section 29): A building which, in the view of the local authority, creates a danger to people, the public, or adjacent buildings/places. It is not limited to buildings on the verge of collapse; it includes buildings from which masonry, glass or other parts may fall or cause harm.
Dangerous building notice: A formal notice served on the owner of a dangerous building requiring specified works (repair, securing, or demolition) to remove the danger, with deadlines for commencement and completion. Failure to comply is an offence, and the authority can step in and recover its costs.
Emergency works under section 29(3): Where urgent action is required, the local authority may carry out immediate work (such as erecting barriers or removing loose elements) to reduce or remove danger, and then charge the owner. This typically addresses short‑term safety issues; it does not replace the longer‑term requirement for a dangerous building notice unless the danger is truly removed.
Academic (otiose) proceedings: A case is “academic” or “otiose” where the underlying dispute no longer needs to be resolved by the court – for example because the respondent has already taken the action sought. The court may still decide who pays expenses.
Expenses: The Scottish term for legal costs. The general rule is that “expenses follow success”, but the court has discretion, especially in public law cases that become academic. It may look at which party’s conduct caused the litigation.
Adminicle of evidence: A Scots law term meaning a piece or part of the evidence – not necessarily conclusive on its own, but one element that contributes to the overall picture.

7. Conclusion

This decision provides an important clarification of the obligations of Scottish local authorities under section 29 of the Building (Scotland) Act 2003 and the approach to expenses in academic judicial review.

Substantively, it underscores that:

Once a building appears to be dangerous and that danger is not removed by emergency measures, the authority’s duty to serve a dangerous building notice is mandatory and must be carried out within a short, reasonable period.
Long delays, especially where simple remedial works are plainly required, are incompatible with the Act and with the guidance in the Handbook.
Authorities must avoid an overly narrow focus on “structural unsafety” and instead address all forms of danger posed by a building’s condition.

Procedurally, the judgment confirms that:

Even where a judicial review becomes academic because the public body belatedly complies, the court will scrutinise the history to decide who caused the litigation.
If the petitioner has acted reasonably and the public body’s delays and communications made litigation necessary, the court may award expenses to the petitioner despite formal refusal of the petition.

In Aldi Stores Ltd v Inverclyde Council, the Council’s extended delay, its failure to act on clear evidence of ongoing danger, and its unsatisfactory engagement with Aldi led the court to hold that Aldi was fully entitled to bring the petition. The case stands as a clear reminder that duties to protect public safety, especially under section 29, are not to be performed at a leisurely pace, and that belated compliance does not immunise public bodies from financial consequences where their earlier conduct has necessitated judicial intervention.