Scottish Court of Session Decisions

This was an advocation from the Sheriff Court of Lanarkshire brought under the following circumstances:—

The advocater is clerk to the Statute Labour Trustees of the parish of Avondale, in which parish the burgh of barony of Strathaven is situated. The respondent is proprietor of certain premises on one side of a street or lane in Strathaven, called the Big Close or Wide Close. Some time before the commencement of the present proceedings, certain of the respondent's premises having fallen into decay, he commenced rebuilding the same on their former site. Against his doing so the advocator presented a petition for interdict to the Sheriff, founding upon the 31st section of the Local Statute Labour Act, 47 Geo. III., c. 45.

The section in question, inter alia, enacts, with reference to the statute labour roads of Lanarkshire, that “no person shall make or erect any house or other building, excepting only stone fences or walls, not exceeding 6 feet in height, within 20 feet of the centre of any of the said roads”—and it

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goes on to declare that the trustees shall be entitled to order any building illegally erected to be removed. It was contended by the respondent that this section had no application to the rebuilding of old houses, and, further, that in any event the application to the Sheriff was incompetent, the judge ordinary having no jurisdiction under the statute.

The Sheriff-Substitute (Veitch) granted interim interdict, and allowed a proof. The Sheriff-Principal (Alison) reversed, and dismissed the petition on the ground that the Act did not apply to the rebuilding of old houses on their former sites. The petitioner advocated; and the Lord Ordinary having on 17th March 1865 sustained the competency of the advocation, and found that the petition was competently presented to the Sheriff, allowed, of consent, to both parties a proof, before answer, of their averments.

This proof having been reported and parties heard, his Lordship has now issued an interlocutor advocating the cause—finding that the 31st section of the Act is inapplicable to the circumstances of the case, and of new dismissing the petition, with expenses. In the note subjoined to his interlocutor his Lordship observes:—

“The Lord Ordinary has no doubt that the streets and closes of Strathaven (so far as not occupied by a turnpike road) are under the charge and control of the statute-labour trustees for the county. The words of the Act embrace the roads of the county generally, whether in or out of burgh; and the exception of Glasgow and Hamilton only confirms the application of the statute to the other burghs. Strathaven, as a burgh of barony (in which, however, there appears to have been for years no baillie of any kind), has no claim for exemption. Accordingly, it is proved beyond a doubt that the streets of Strathaven, including the Wide Close, have been all along taken charge of and replaced by the statute-labour trustees—and the Lord Ordinary thinks rightly.

With regard to the special clause in question (the 31st), it is here, as in other statutes, not easy to compass the entire meaning and scope of the enactment. By the 35th section the maximum breadth of the statutory roads is declared to be 30 feet; and why by the 31st section a space of 40 feet is to be kept clear is not distinctly apparrent. The intention probably was to provide room for ditches and drains (which by the 35th section are beyond the 30 feet), or generally for greater airiness and contingent convenience. However this may be, there can be no doubt that in certain circumstances the section is imperative. The Lord Ordinary cannot doubt that a building erected for the first time on a county road must, under this section, be at least 20 feet from the centre of the road.

But he thinks it impossible reasonably to apply the section to the actual case. There is here neither a county road nor a new erection. The case is that of an old house in a street or close of Strathaven, which is proposed to be rebuilt. The street is fully made up on both sides, with houses on either side of that in question, which the trustees cannot touch. The proposal is that the respondent shall throw back his rebuilt house greatly within the line of the houses on either side; and this for no good purpose to be served by the trustees, for they cannot widen the street generally; and can do nothing more than inflict an injury on the respondent by keeping an unnecessary gap in front of his new tenement. Nor is this the only injury he will sustain; for, not having space to the back (as might commonly be had in a rural district) to remove the entire tenement, the effect of forcing him to put back the front of his building would be simply to compel him to throw away half the building, leaving the remainder of comparatively little value. And all this is to be done by the respondent without compensation, but merely reserving his claim for payment for any ground which the trustees may take for widening the close at some indefinitely remote period.

The Lord Ordinary is of opinion that on no reasonable construction of the section in question can it be made to apply to such a case. He thinks the ‘making or erecting a house’ contemplated by that section cannot with any propriety or fairness be held to mean the rebuilding of an old tenement on the side of a fully-formed street like the Wide Close.

The Lord Ordinary finds that on this matter the road trustees have by no means had very settled views or a definite course, for the proof discloses repeated instances in which houses have been rebuilt in Strathaven without the trustees applying to the case the provisions of section 31. It appears to the Lord Ordinary that the recent interpretation of the trustees is not the sound one.”