Scottish Court of Session Decisions

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Cite as: [1874] ScotLR 11_651, [1874] SLR 11_651

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SCOTTISH_SLR_Court_of_Session

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Court of Session Inner House First Division.

Wednesday, July 1. 1874.

[Dean of Guild, Glasgow

11 SLR 651

James Morrison

v.

John M'Lay and Others.

Subject_1Dean of Guild
Subject_2Street
Subject_3Feuing Plan.
Facts:

Where the owners of building stances in a street were bound by their titles to erect houses of “a style not inferior” to certain four story houses already erected in the street,— held that a row of shops one story high on the street line, with a building on the back green sixty feet high in the roof, did not comply with this restriction.

Headnote:

The appellant in this case presented a petition to the Dean of Guild in Glasgow, in which he asked, inter alia, for authority to erect certain buildings in St George's Road according to a plan annexed. The respondent M'Lay resisted the application, on the ground that the proposed buildings were in contravention of the restrictions and conditions contained in the petitioner's titles and his own, which provided that no buildings should be erected inferior in style to certain other houses already erected by Messrs Galloway & Lumsden, and that no buildings should be erected on the back ground having a greater height in the side walls than 20 feet. The proposed buildings were a line of shops one story high along the street, and on the back ground a public hall with side walls of 20 feet and a roof of 60 feet high. The buildings already erected were four stories high, the ground floors in some of them being occupied as shops. The Dean of Guild refused the application. The petitioner appealed.

At advising—

Judgment:

Lord President—The petitioner here is under certain restrictions which are contained in the contract of ground annual of his author James Foster with the trustees of the late Thomas Ferguson. They are in the following terms:—“Declaring always, as it is hereby expressly provided and declared, that the said second party or his foresaids shall be bound and obliged, within five years from and after the the term of entry aftermentioned, to erect, and thereafter to uphold and maintain in all time coming, upon the steading of ground hereby disponed, a house or houses of sufficient value to yield a yearly rent at least equal to double of the foresaid ground-annual or yearly ground rent, and the feu-duty after specified payable from the same, and which house or houses to front St Georges Road shall not be of a class inferior to the houses sometime ago built by James Galloway and Thomas Lumsden, masons and builders in Glasgow, on part of the plot of ground above described…. Declaring that the said second

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party and his foresaids shall not be at liberty to erect upon the back part of the steading of ground hereinbefore disponed any building or buildings of a greater height than 20 feet in the side walls.” Now the question is whether the building which the petitioner is proposing to erect fairly complies with these provisions. The model houses, which we have seen, of Galloway & Lumsden, are houses of a very common description in Glasgow, consisting of four stories, some having the ground floors occupied as shops while the upper floors are separate dwellings, others being occupied entirely as dwelling-houses, and none of them being self-contained. The style of the houses is very fairly represented on the plan, but the building or range of buildings proposed to be erected by the petitioner consists in front of only one story, which is to be occupied as shops, but in the middle of the range of shops there is an entrance of a more imposing character conducting to a building erected on the back ground, which is very low in the walls, but enormously high in the roof, and which is intended for a public hall. Of course this roof will be seen over the one story shops, and its aspect to passers by will be of rather an anomalous character, but the question is whether it is in a style inferior to the houses of Galloway & Lumsden, and I do not find that a very easy question to answer, but I am disposed on the whole to agree with the Dean of Guild, and that they are inferior in style, and would rather interfere with the successful feuing of building ground in St Georges Road. I am therefore for adhering to his judgment. I do not go particularly on the question whether the proposed building is in violation of the provision restricting the height of the side walls to 20 feet. That might be difficult to maintain, and though no doubt the roof is enormously high, the side walls do comply with the restriction. The style of the whole plan, however, is objectionable.

Lord Deas—One stipulation in these titles is, that houses shall be erected on the ground not inferior in style to the class of houses mentioned, which run along the line of St Georges Road, where the proposed shops are to be built. There is no question raised as to M'Lay's interest to complain; the only question is as to the meaning of the stipulation. The proposed buildings are a line of shops one story high, and behind them a building with walls 20 feet high and a roof of 60 feet, and I am clearly of opinion that in dealing with a street, a line of shops with such a roof running up behind them is an inferior style.

The other Judges concurred.

The Court adhered.

Counsel:

Counsel for Morrison— Watson. Agents— Ronald, Ritchie, & Ellis, W.S.

Counsel for M'Lay— Dean of Faculty (Clark), Q.C., and M'Laren. Agents— Duncan & Black, W.S.
1874