Scottish Court of Session Decisions

In December 1879 Alexander Boswell, trunk maker, proprietor of the street and basement floors of the tenement Nos. 8 and 10 Hanover Street, Edinburgh, and of the back ground behind

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the same, presented a petition to the Dean of Guild Court for authority to erect certain buildings on the back ground. Besides being proprietor of the street and basement floors, Mr Boswell was proprietor of two attics on the south side of No. 10 Hanover Street.

The City of Edinburgh were proprietors of the flat No. 10 Hanover Street, above the street floor belonging to Boswell. This flat was used by the City as the Lands Valuation Office of the City of Edinburgh. The City of Edinburgh opposed Boswell's application, on the ground that the supply of light and air to the Lands Valuation Office would by the erection of the buildings complained of be injuriously affected. The Dean of Guild refused the application, and Boswell having appealed, the Second Division remitted to the Dean of Guild to visit the premises along with his council and report specifically the grounds on which the proposed erections would materially injure the access of light to the property of the town. The Dean of Guild made this report—“The building in question is proposed to be erected only about twenty-one feet distant from the windows of the property of the respondents, the Lord Provost, Magistrates, and Council, is to extend along the whole length of the said property, and is to be built to the height (measuring to the eaves) of eighteen feet above the level of the sills of the windows of the lowest flat of the said respondents’ property, which is occupied as the Lands Valuation Office, and to the height of six feet above the level of the sills of the windows of the respondents’ flat immediately above the said offices.

“A back building similar to that proposed to be erected by the appellant has been erected on the back ground immediately to the north of his back ground. This building is of the same height as the appellant's proposed building, and is the same distance from the back windows of the tenement in front of it as the [appellant's proposed erection is from the said respondents’ property.

The Court inspected the back rooms in the said front tenement which are on the same level as the Lands Valuation Offices, and found that the said back building materially interferes with the access of light thereto.

On these grounds the Dean of Guild and his Council have to report that the appellant's proposed erection on his back ground will have the effect of materially interfering with the access of light to the said respondents’ property, and that the said lowest flat of the respondents’ property in particular will be materially affected thereby.”

The Court thereafter, on 21st October 1880, dismissed the appeal and affirmed the judgment of the Dean of Guild.

The present application was made by Boswell for warrant to erect a different building on the back ground belonging to him behind the tenement. The nature of this building will be found described in the interlocutor of the Dean of Guild printed below. The petitioners averred that the erections now proposed to be made by him were such as he was entitled to make, and would not interfere with the access of light or air to the property of the City of Edinburgh. The City of Edinburgh again opposed the application, on the ground that the supply of light and air to the property of the City would be injuriously affected by the operations proposed. It was also maintained by the City that the petitioner was not entitled in a question with them, as the other proprietors of the tenement, and having a common interest with him in the back area, to build to a greater height than the level of his own property. The application was also opposed by James Aitchison, proprietor of certain neighbouring premises entering from a lane which the petitioner's operations were to affect. He objected to certain proposed sunk areas which the petitioner proposed to make.

The City of Edinburgh pleaded, inter alia, that warrant ought to be refused, in respect that by the proposed erections the access of light and air to their property would be materially injured. They also pleaded—“(3) Separatim, In no view is the petitioner entitled to build on the back area, in which the proprietors of the main or front tenement have an interest, to a greater height than the level of his own property.”

The Dean of Guild pronounced this interlocutor:—“Finds that the whole subjects to which this petition relates were included in a feu-charter, dated 28th June 1876, by the Lord Provost, Magistrates, and Council of the City of Edinburgh, to the trustees of John Sutter; that the petitioner is the proprietor of the house or premises 8 South Hanover Street, consisting of the ground and street storeys of the tenement erected by the said John Sutter, with the area at the back of the said tenement, and pump well thereon, together with the sunk area and three cellars under the pavement opposite to the front of the said tenement; that the respondents, the Lord Provost, Magistrates, and Council of the City of Edinburgh, are proprietors of the flat occupied as the Lands Valuation Office, immediately above the petitioner's street storey—part of the said tenement——and entering by the common stair; that on the back area there is proposed to be built by the petitioner, immediately behind the petitioner's street storey, a saloon extending backwards to the meuse lane; that at a distance of 21 feet 6 inches from the back wall of the petitioner's street flat and the flat belonging to the City of Edinburgh there is to be erected over the said saloon an addition of a first floor and attic floor, 19 feet 9 inches higher at the ridge of the roof and 8 feet 9 inches higher at the wall head than the top of the petitioner's street storey; that the saloon, in so far as between the main tenement and the said additional floors, is to be lighted by a cupola, rising about 3 feet above the [petitioner's street flat; that the sill of the back windows of the respondent's said flat is about 3 feet above the petitioner's flat, and that the windows are 7 feet in height; that in the opinion of the Court the proposed new buildings would not materially interfere with the light or air of the respondents’ said flat; that the proposed building being of a greater height than the street storey belonging to the petitioner, the said respondents would be thereby prevented from extending their flat to the back above the saloon proposed to be erected by the petitioner; that these buildings would thus encroach on the rights of the respondents as proprietors of said flat; that the petitioner is not entitled to build on the back area to a height which would in-fringe

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on the rights of the proprietors of the upper flats: Therefore to this effect sustains the defences for the City of Edinburgh; refuses the application,” &c.

He added this note—“The second plea for the respondents is to the effect that the proposed buildings would interfere materially with the access of light to their property, and parties were agreed that this question of fact should be the subject of inquiry. It was suggested to the parties that they might have this inquiry made either under a remit to a man of skill or by an inspection by the Dean and his council. Neither party moved for a remit, and both acquiesced in the inquiry being made in the usual way by the Dean and his council, who accordingly visited and inspected the subjects. By a majority they were of opinion that the buildings would not materially interfere with the light or air of the respondents’ premises. On this opinion being intimated the agent for the City moved for a remit to a man of skill in respect the opinion was arrived at by a majority, but, in the circumstances stated, this motion was refused.

“In reference to the findings to the effect that the petitioner is not entitled to erect the buildings proposed, which are above the height of his own storey, it is important to observe that as to front areas it has been the practice to prohibit the proprietor of the street flat front building on them above the height of the street flat, and to require that any. such erection shall be so made as to admit of the proprietors of the upper flats projecting their front walls on the top of it. This implies that as regards front areas, while proprietors of the upper flats have a common interest in the solum, they have also right to appropriate the space ex adverso of their respective flats for the purpose of projecting their walls equally with the proprietors of the street flat. This appears to be an equitable adjustment of the rights of the various proprietors in such tenements both as to the front and back areas. No reason was suggested and no authority quoted at the debate to support the view that the proprietor of the street flat should have a right to build to a greater height on the back area than on the front area, or that the proprietors of the upper flats should not have a right to extend their flats to the back as well as to the front. If the right of the street flat proprietor in the back area were to be held as being a centro usque ad coelum, qualified only by the right of the upper flat proprietors to light and air, it would follow that no projection to the back, such as a bow window, could be made by them. Even assuming that light and air are not interfered with, it is obvious that a building in a back area, at a distance of 20 or 30 feet from and of equal height with one or more of the upper flats, would, by excluding the view, and by the opening of windows immediately opposite, materially affect the amenity and value of the upper flats of the tenement. The right claimed by the petitioner, if sustained, would thus entitle him to invert and injure the possession of the upper flat proprietors as originally arranged and hitherto enjoyed by them.”

Boswell appealed.

Authorities— Stewart v Blackwood, Feb. 5, 1829, 7 Sh. 362; Urquhart v. Melville, Dec. 22, 1853, 16 D. 307, Johnstone v. White, May 18, 1877, 4 R. 721; Barclay v. M'Ewan, May 21, 1880, 7 R. 792; Heron v. Gray, Nov. 27, 1880, 8 R. 155; Scott v. Commissioners of Police of Dundee, Dec. 18, 1841, 4 D. 292.

The Court on 5th July 1881, before further answer, remitted to Mr Burnet, architect in Glasgow, to examine the premises, “and with reference to the points in controversy, in this process, to report his opinion whether the operations proposed will injure the light and air of the building of the respondents above that of the appellant, or affect the value of the same, and to accompany his report with any remarks he may consider likely to be of assistance to the Court.”

Mr Burnet reported that the proposed operations “would injure the light and air of the buildings of the respondents above that of the appellant, but to so inappreciable an extent as not to affect the value of the same.”

He added the following explanations and suggestions:—“1. The proposed back buildings would undoubtedly diminish the light and air of the respondents’ property; but the degree of interference would be so slight that, in my opinion, the market value of the property would not be lowered. That value depends in a great measure upon the situation being in the centre of the business portion of the city of Edinburgh. In the event of a sale after the erection of the back buildings, should these be authorised, intending purchasers would not, I think, look upon the property as depreciated by diminution of light and air, as I consider the property would be possessed of these essentials in sufficient quantity for all practical purposes.

2. Such a building stance in Glasgow—that is, a steading stretching from a street to a back lane,—is usually held under a single, not a several ownership. In practice the whole plot from back to front is built over to a uniform height, but for the preservation of light and air a well or court is usually formed about the middle of the property, and the walls around this well or court are mainly of glass. The open space proposed to be allowed in the present case is larger relatively than is left open in Glasgow, while the space for light and air usually allowed in Glasgow is, as a rule, found to be quite ample.

“3. While the above is my opinion, I venture to make the following suggestions, as invited by the Court, with the view to minimising interference with the amenity of the respondents’ property, and lessening the chance of injury to it from fire or housebreaking, through the erection of the back buildings, viz.—

(1) There should be no windows in the wall of the proposed back buildings, facing the back windows of the respondents’ property.

(2) That wall should be entirely faced with white enamelled bricks.

(3) The roof of the saloon, with its skylights or cupolas, should be placed no higher than the level of the lowest floor of the respondents’ property.

(4) No skylight or cupola should be placed in the roof of the saloon nearer the back wall of the respondents’ property than 6 feet.

(5) The roof of the saloon should be constructed of concrete, for prevention of fire contagion, and laid with white coloured tiles for light and general amenity.

(6) The ceiling of the ground-floor of the appellant's back building—that is, the portion facing the lane—might be made lower, say 4 or 5 feet, as this height can readily be spared from the very high ceiling proposed. The height of the building itself would thus be reduced to a considerable extent, without detriment to the appellant, and to the advantage of the respondents’ property, in substantially lessening the height of the building opposite their back windows.”