Summary of Opinion by Judge Braid

Factual and Procedural Background

This opinion concerns a petition for judicial review presented by Company A on 29 August 2025 seeking orders to secure compliance by Company B with what Company A averred was Company B's duty under section 29 of the Building (Scotland) Act 2003. The duty related to the service of a dangerous building notice in respect of a disused/refurbishment property (hereafter "the Property") adjacent to Company A's store, from which masonry had previously fallen into Company A's car park. Company A's objective was the service of a dangerous building notice to require remedial action.

Key procedural and factual milestones drawn from the opinion:

• September–November 2024: masonry fell from the Property; Company B erected and later extended a cordon that affected Company A's car park; Company A's solicitors repeatedly requested urgent action.
• December 2024–March 2025: Company B made initial attempts to contact owners; correspondence with owners was incomplete; Company B monitored the Property and requested owners to commission a condition survey.
• January 2025: Company A commissioned a Technical Due Diligence (TDD) report (inspection dated 22 January 2025) concluding hazardous condition of the Property.
• July–August 2025: Company A escalated concerns; Company B instructed its own structural engineer's report on 4 August 2025; inspection occurred on 26 August 2025; Company A presented the petition on 29 August 2025; Company B received its structural engineer's report on 1 September 2025 and was served with the petition on 8 September 2025.
• 23 September 2025: Company B served a dangerous building notice on the owners specifying removal or repair of loose building parts.
• Company A did not oppose dismissal of the petition after the notice was served; the remaining dispute concerned entitlement to expenses.

Legal Issues Presented

1. Whether the petition had been rendered academic by Company B's service of a dangerous building notice.
2. Whether Company B had breached its duty under section 29 of the Building (Scotland) Act 2003 by delaying the service of a dangerous building notice.
3. Which party should be ordered to pay the expenses of the petition, given that the substantive relief sought had been achieved by the service of the notice.

Arguments of the Parties

Respondent's Arguments (Company B)

• Company B submitted it had taken all steps reasonably required under section 29 and the Scottish Building Standards Procedural Handbook (the Handbook), including protective measures and monitoring.
• Primary responsibility to prevent buildings becoming dangerous rested with the owner; Company B's powers were a safety net.
• Service of a notice was only one remedy; further investigation and engagement with owners (including requesting a condition survey) were appropriate and consistent with the Handbook.
• Company B instructed its own report once it became apparent the owner had not provided one; the TDD report supplied by Company A could not be relied on because it was confidential, pre-dated a storm event, and recommended instruction of a structural engineer.
• Complexities (listed building status, one owner deceased, another seriously ill) and limited resources informed Company B's approach. Company B argued neither party had succeeded and that each should bear their own expenses.

Petitioner's Arguments (Company A)

• Company A argued Company B's conduct was unreasonable and caused the litigation; the petition became academic only because Company B belatedly exercised its duty.
• Section 29 imposes an express duty to serve a dangerous building notice where a building appears dangerous; although some latitude is permitted, guidance (including factors stated in National Car Parks Ltd v Baird) establishes that undue delay is not acceptable.
• The TDD report, while not determinative, was an admissible adminicle of evidence indicating the Property was dangerous and required urgent work; Company B's own later report confirmed that position.
• Company A emphasised long delays, poor communication, and unfulfilled assurances from Company B; Company A sought an award of expenses in its favour.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
National Car Parks Ltd v Baird [2004] EWCA Civ 967	Guidance (per Dyson LJ) on the margin of appreciation for performance of a statutory duty: consider (i) subject matter and context, (ii) length of time taken, (iii) reasons for delay, and (iv) prejudice caused by delay.	The court applied these factors and concluded that the duty to remove danger required expeditious action; the length and reasons for Company B's delay and the prejudice to Company A indicated Company B ought to have served a notice sooner.
City of Edinburgh District Council v Co-operative Wholesale Society Ltd 1986 SLT (Sh Ct) 57	Explanation of the statutory predecessor to section 29: distinguishes immediate emergency powers from situations where work can wait and assessment of degree of risk is required.	The court relied on this explanation to observe the structure of the statutory duty and to conclude that the required assessment of risk had been satisfied such that a notice should have been served earlier.

Court's Reasoning and Analysis

The court's analysis proceeded in stages.

1. The court accepted three "incontrovertible facts" derived from the material: (a) the Property was in a dangerous condition in September 2024 (masonry had fallen and Company B had taken emergency action under section 29(3)); (b) the Property remained dangerous thereafter (no repairs, the TDD report, and Company B's later dangerous building notice); and (c) Company B took nearly a year to serve a dangerous building notice.
2. The court acknowledged that section 29 does not prescribe a strict time limit, and that some latitude is afforded to local authorities (and that the Handbook contemplates negotiation with owners in appropriate cases). However, the Handbook itself contemplates immediate agreement by the owner and swift action if the owner fails to carry out agreed work; it does not contemplate long delays.
3. Applying the structured factors from National Car Parks Ltd v Baird, the court considered (i) the subject matter (removal of danger from a building) required expedition; (ii) the length of delay (approximately eleven months to a year) was excessive; (iii) the reasons given (periods of inactivity, late contact with owners, undue deference to owners) did not justify the delay; and (iv) prejudice to Company A had occurred (loss of use of part of its car park due to the cordon).
4. The court criticised Company B for treating the issue as one of structural safety only and for waiting for owner-provided evidence rather than forming its own view as the primary decision-maker. The court observed that the Act did not require a structural defect to be shown before a building could be treated as dangerous; the measures specified in the notice were relatively limited and could have been specified earlier.
5. The court found that by 29 August 2025 Company B was in breach of its duty to serve a dangerous building notice, or at least it was reasonable for Company A to conclude that Company B was in breach. The court also found Company B's correspondence insufficiently candid and noted inaccurate or unfulfilled representations about contact with owners and timescales.
6. Because Company A was entitled to seek relief and its objective (service of a notice) was achieved as a result of the petition process, the court concluded Company A was entitled to recover its expenses from Company B.

Holding and Implications

Holding: The petition is refused, but the court finds in favour of Company A on the question of expenses and orders that Company A is entitled to recover its expenses from Company B.

Implications:

• The direct consequence is that Company A obtains an award of expenses against Company B despite the petition itself being refused (dismissed as the substantive remedy was achieved by the service of a dangerous building notice).
• The court emphasised that section 29 imposes a duty to act where a local authority considers a building dangerous and that undue delay in issuing a dangerous building notice, where danger persists, may amount to a breach of that duty.
• The opinion does not purport to establish a novel legal principle beyond applying existing authority and statutory interpretation; its immediate effect is confined to the parties and the circumstances described.

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Source: Summary prepared from the provided court opinion authored by Judge Braid. All names and identifying details have been anonymised in accordance with the instructions for this summary.