Sheriff Court case considering a noticed served on Mr and Mrs Sinclair by Fife Council after a retaining wall (which was over 100 years old) owned by Mr and Mrs Sinclair collapsed and damaged a section of Dysart High Street (which was supported by the wall).  The notice was served under section 91(2) of the Roads (Scotland) Act 1984 and required Mr and Mrs Sinclair to (1) replace the collapsed wall with a new wall and foundation; and (2) reinstate the damaged road. (A conservative estimate of the cost reinstatement of the wall was said to be £200k.)

The Sinclairs challenged the notice under s91(9) of the 1984 Act which allows a person in receipt of a notice to refer the matter by summary application to the sheriff.

In the sheriff court it was found that, whilst the Council was entitled to serve a notice in respect of repairs to the wall, it was not entitled to do so in respect of the reinstatement of the road. The notice could be served on Mr and Mrs Sinclair as owners of the wall because the wall was in such condition that it was a danger to the road or road users. However, the same was not the case with the road. They did not own the road or the solum and were not responsible for its maintenance. Any works to the road would require the Council’s consent in terms of s56 of the 1984 Act and that could not be given in advance in the notice.

The quashing of the part of the notice referring to the road did not invalidate the remainder of the notice which referred to the wall. But, although the part of the notice referring the wall was valid, the court found that its requirements were unreasonable. In coming to this conclusion the court took account of the following:

1. The use of the road and the benefit the Council derived from the wall: the road was a busy thoroughfare through Dysart used by, amongst other things, buses, refuse lorries and other public utility vehicles. The support provided by the wall was central to the safe keeping of the road and, as a result, the council kept a register of retaining walls and carried out regular inspections. Although the inspections identified a bulge, more detailed tests to identify the danger the bulge represented were not carried out. It was also known by the Council’s engineers that the wall’s random rubble construction was not suitable for its purpose as a retaining wall and yet the council did not further examine the wall to assess its fitness for purpose.
2. The causes of the collapse: a number of factors were put forward as reasons for the collapse but it was agreed that backfill[1], which was owned entirely by the Council and over which the Sinclairs had no control, was an important factor in the collapse. The road had also been disturbed by the Council and utility companies.
3. Although it was of significance that the Council had in no way contributed to the collapse of the wall by act or omission, if the inspection regime had been more rigorous failings in the wall would have been identified and action taken.
4. The council required the replacement wall to meet modern design standards which would result in a significant improvement to their roads infrastructure at no cost to them.

The Council had the discretion to pay for or contribute to the costs of the remedial work but chose not to. Given the history of events leading to the collapse, the court found that decision to be unreasonable and, as a result, quashed the whole notice.

 The full judgement is available from Scottish Courts here.