Scottish Court of Session Decisions

Under sections 121, 122, and 126 of 45 and 46 Vict. c. clxxxv. (The Dundee Police and Improvement Consolidation Act 1882) no new buildings can be erected within the burgh of Dundee “until the plans and sections required by this Act relating thereto have been approved of by the [Police] Commissioners, either with or without modifications.” Section 121 provides that the plans and sections shall show and describe the mode of construction and dimensions of all proposed chimneys and flues; while section 126 is as follows:—“In every new building the chimneys and flues and hearths shall be constructed in such mode and of such materials and dimensions as shall be approved of by the Commissioners.”

On the 29th September 1884 Robert Small & Company, brick manufacturers, laid before the Commissioners, in terms of the 121st section of the above, the plans and sections of certain brickworks which they proposed to erect on the outskirts of Dundee, which plans showed, inter alia, a chimney 80 feet in height. The Works Committee of the Police Commissioners pronounced a deliverance whereby they approved the said plans and sections “subject to and with the declaration that the chimney-stalk be built to a height of not less than 150 feet above the level of the ground adjoining.”

Against this deliverance Small & Company appealed, and prayed the Court, “after hearing parties and making such inquiry as to your Lordships shall seem proper, to recal the deliverance complained of, in so far as it requires the chimney—stalk proposed to be erected by the appellants to be built to a height of not less than 150 feet, and to fix such other and lesser height for the said chimney-stalk as your Lordships may approve.” They made the following averments—The site of the kiln was on high ground at the back of the town, the elevation being 230 feet above the level of the river Tay, and there were no buildings of any kind between it and the municipal boundary of the burgh. The nearest buildings on the west were 450 feet from the chimney, and on the east 40 feet. In planning the proposed works they bad availed themselves of experience gained by them during the last fourteen years at Pitfour, where within 600 yards of the mansion-house they had worked without any complaint either of injury to the crop or the adjoining land, or to the amenity of Pitfour House, brick-works, with kilns roofed in, where the heat from the fires was conducted by flues to a central chimney. They were satisfied that the proposed chimney of 80 feet high was amply sufficient to carry away any smoke without injury to the amenity of the neighbourhood. The requirement of the Commissioners was unnecessary and unreasonable, and it was inconsistent with their action in other cases where they had authorised chimneys in different works specified in the appeal to be erected at a much less height than 150 feet. They stated that the deliverance complained of had been arrived at without notice to and without hearing them.

The complainers pleaded—“The deliverance appealed against being unreasonable and uncalled for, and being inconsistent with the Commissioners' action in other similar cases, ought to be recalled or altered as craved.”

The respondents answered as follows—They admitted that the site was on high ground, but explained that the ground to the north was still higher. That ground was a feuing subject, and the proposed chimney might soon be enclosed on the north and west sides by blocks of dwelling-houses, four storeys in height, within 90 feet of the kilns. The plans did not show any provision for consuming smoke. In regard to the averment that the appellants had not been heard, they were not bound to send notice to or hear parties. “The mode or practice followed generally is as follows—The notices of the parties, with the relative plans and sections, constitute the case of the applicants, and the Commissioners' committees and sub-committees, which consist of practical men, aided and assisted by the Burgh Engineer, thereafter consider the plans and sections submitted, and pronounce deliverances.” They did not now allow the erection of any such chimneys less than 75 feet in height where there was a single flue, while the appellants' had six kilns with separate flues.

Page: 93↓

In the course of the argument, in which the appellants' counsel had asked for a remit to a man of skill, in respect they had not been heard by the Commissioners, the respondents' counsel stated that if the appellants thought they had not had a proper opportunity of being heard by the Commissioners, he did not object to the case being remitted back to them for the purpose. The appellants' counsel refused the proposal.

At Advising—