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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Guthrie, Craig, Peter, & Co. The Magistrates of Brechin [1885] ScotLR 22_343 (9 January 1885)
URL: http://www.bailii.org/scot/cases/ScotCS/1885/22SLR0343.html
Cite as: [1885] ScotLR 22_343, [1885] SLR 22_343
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SCOTTISH_SLR_Court_of_Session
Page: 343↓
Court of Session Inner House First Division.
Sheriff of Forfarshire.
Facts:
A manufacturer whose works were within burgh presented a petition in a Sheriff Court to have a local authority ordained to allow him to empty the drains containing the discharge from his works into the burgh sewers. He founded upon section 77 of the Public Health Act 1867, and upon section 7 of the Rivers Pollution Act 1876. The local authority in defence also founded on section 7 of the Rivers Pollution Act 1876, stating that the liquid in question would injure the sewers and prejudicially affect the sewage, and the Sheriff gave judgment upon this issue. Held that in these circumstances the 108th section of the Public Health Act of 1867 did not operate to prevent an appeal to the Court of Session against the judgment of the Sheriff.
Messrs Guthrie, Craig, Peter, & Company were tenants and occupiers of the Brechin Paper Mill Manufacturing Works, within the burgh of Brechin, and as such were liable for sewerage or drainage assessment to the Magistrates and Town Council of the burgh, who were also the local authority under the Public Health (Scotland) Act 1867, and the Public Health (Scotland) Amendment Act 1871. Section 77 of the Public Health (Scotland) Act 1867, provides—“Any owner or occupier of premises within the district of a local authority, liable for general or special sewerage or drainage assessment, shall be entitled to cause his drains to empty into the sewers of such local authority on condition of his giving twenty days' previous notice of his intention so to do to the local authority, and of complying with their regulations in respect of the mode in which the communications between such drains and sewers are to be made, and subject to the control of any person who may be appointed by the local authority to superintend the making of such communications.”
On 12th March 1883 Messrs Guthrie, Craig, Peter, & Company gave the Magistrates notice, in terms of the 77th section of the Public Health (Scotland) Act 1867, that they desired to cause the drains from their works to empty into the sewers within the burgh, and intimated their readiness to comply with the regulations as to the mode in which the communication should be made and otherwise.
The Magistrates replied agreeing to give facilities for enabling them to carry the liquids proceeding from their works into the public sewers, provided they were satisfied that this would not prejudicially affect the sewers or the sale of the sewage matter conveyed along the sewers.
Messrs Guthrie, Craig, Peter, & Company obtained a report from a chemical expert to this effect, but the Magistrates refused to allow any communication between the drains and the sewers to be made.
Messrs Guthrie, Craig, Peter, & Company accordingly presented a petition in the Sheriff Court of Forfarshire at Forfar, praying that the Magistrates should be ordained “to allow the pursuers to cause the drains of and containing the liquid flow from the Brechin Paper Mill Manufacturing Works, situate on the river South Esk, within the burgh of Brechin, tenanted and occupied by the pursuers, to empty into the sewers of the defenders in or near River Street within the said burgh of Brechin; and to find that the pursuers are entitled to make all proper communications between their said drains and the said sewers for the purpose aforesaid, on condition of the pursuers complying with the defenders' regulations in respect of the mode in which the communications between such drains and sewers are to be made, and subject to the control of any person who may be appointed by the defenders to superintend the making of such communication.”
Besides founding on the 77th section of the Public Health Act 1867 (above quoted), they set forth the 7th section of the Rivers Pollution Prevention Act 1876. That section provides—“Any sanitary or other authority having sewers under their control shall give facilities for enabling manufacturers within their district to carry the liquids proceeding from their factories or manufacturing processes into such sewers, provided that this section shall not extend to compel any sanitary or other local authority to admit into their sewers any liquid which would prejudicially affect such sewers, or the disposal by sale, application to land, or otherwise, of the sewage matter conveyed along such sewers, or which would from its temperature or otherwise, be injurious in a sanitary point of view; provided also, that no sanitary authority shall be required to give such facilities as aforesaid where the sewers of such authority are only sufficient for the requirements of their district, or where such facilities would interfere with any order of any Court of competent jurisdiction respecting the sewage of such authority.”
The defenders stated in answer, that as part of a new drainage system which had recently come into operation, the sewage running through their drains which entered the river South Esk was now under a new scheme prevented from falling into the South Esk till it had been purified by passing through a sewage farm, and they averred that the discharge from the pursuers' drains would prejudicially affect the sewers, and prejudice the quality of the sewage for the purpose of such application to land. It would also, they said, unduly increase the volume of the total discharge.
The Sheriff-Substitute ( Robertson), after proof, found that a plan of purification proposed by the pursuers would render the discharge from their works harmless, and that the defenders were therefore bound to receive it in their sewers.
The Magistrates appealed to the Court of Session.
When the case appeared in the Single Bills the pursuers objected to the competency of the appeal, and argued—The petition was brought under the 96th section of the Public Health Act 1867, which provided a statutory remedy where the local authority neglected any duty imposed upon it under the Act. The 77th section imposed a duty on the local authority which they declined
Page: 344↓
to perform, and the Sheriff having now ordained them to do so, appeal against his judgment to the Court of Session was precluded by the 108th section of the Act, which provided that “no appeal shall be competent …. from the decree or order of any Sheriff, except in cases certified in terms of the preceding section; and no decree or order, or any other proceeding, matter, or thing done in the execution of this Act, shall, excepting as herein provided, be subject to review in any way whatever.” The previous section, referred to in the 108th section, had no application to the present question, and dealt with questions of nuisance only. The appellants argued—This was an action to vindicate an alleged civil right conferred by the 7th section of the Rivers Pollution Act 1876. That section was complete in itself, and in no way depended on previous statutes. There was no special machinery for enforcing it, and this action might have been brought in the Court of Session. Again, section 108 of the Public Health Act only excluded appeal in cases brought under the 107th section.
At advising—
What is asked here is that the defenders shall “allow the pursuers to cause the drains of and containing the liquid flow from the Brechin Paper-Mill Manufacturing Works, situate on the river South Esk, within the burgh of Brechin, tenanted and occupied by the pursuers, to empty into the sewers of the defenders in or near River Street within the said burgh of Brechin, and to find that the pursuers are entitled to make all proper communications” between their drains and the sewers belonging to the defenders. That is precisely the thing which is contemplated by the 7th section of the Rivers Pollution Act, because in that section the local authority, who have the sewers of the burgh under their control, are ordained to give facilities “for enabling manufacturers within their district to carry the liquids proceeding from their factories or manufacturing processes into such sewers.”
The language in the prayer of the petition therefore coincides with the language of the section which I have just read, and not with that of the 77th section of the Public Health Act. The remedy which is asked is under the later Act, and although the petition is laid upon both Acts, the remedy sought is under the second only, and accordingly the question has been so treated and disposed of in the Inferior Court.
The defence stated on the part of the Local Authority is, that the liquids proceeding from the manufactory are of such a character that the sewage will be destroyed, and be no longer serviceable for useful purposes, if the pursuers' drains are connected with it, and accordingly that the Local Authority cannot be compelled under section 7 of the Rivers Pollution Act to admit it into their sewers. There is a condition in that section that it “shall not extend to compel any sanitary or other local authority to admit into their sewers any liquid which would prejudicially affect such sewers.” This defence having been stated, what is the course which has been followed? The petitioners reply that this is not the character of the liquid which will be discharged from their drains, but that, on the contrary, they are innocuous, and will not prejudicially affect the sewage. Upon the issue between these two opposing statements the Sheriff has given judgment.
That is an issue which could not have arisen except under the Rivers Pollution Act, and the question which we have now to determine is, whether it was the intention of the Legislature that the judgment under that issue should not be subject to review by this Court?
That is a very important question, and in many cases of the very highest importance both to manufacturers and local authorities, and I can find nothing in the Rivers Pollution Act which prohibits an appeal against a judgment upon that question.
Whether if the petition had been laid entirely on the 77th section of the Public Health Act, an appeal would have been competent or not, I give no opinion, because I do not think that this is the point to be determined; but I think it is pretty clear that if it had been laid upon the 77th section no such question as that which has been determined by the Sheriff in this petition could have arisen.
The question which we have at present to decide is, whether this is a summary application such as is excluded from review by this Court under the provisions of the Public Health Act 1867? Under the 108th section of that Act a variety of proceedings are excluded from review, but these appear to me to have reference to such applications for enforcing the provisions of the Act as are dealt with in the 105th section. It is enacted that these applications are to be by summary petition, “and the sheriff, magistrate, or justice shall thereupon, if he see fit, appoint the petition to be answered within three days after
Page: 345↓
The case which we are dealing with is an ordinary application brought in the Sheriff Court under common law forms, and its merits appear to me clearly to raise a very important question under the 7th section of the Rivers Pollution Act. The proceeding is therefore in substance brought under that Act, and I observe that there was more than one long adjourned diet of proof in the course of its passage through the Inferior Court. It is an action in the Sheriff Court raised for the purpose of obtaining a decision whether the Magistrates are bound to allow the pursuers to empty their drains into the public sewers.
Besides the reasons I have adverted to I think that the question raised is too large and important to be decided finally by a local Judge from whom there is no further appeal, to the Superior Court.
The Court repelled the objection to the competency, and the case was sent to the roll.
Counsel for Pursuers (Respondents)— Guthrie. Agents— W. & J. Burness, W. S.
Counsel for Defenders (Appellants)— J. P. B. Robertson— Dickson. Agents— Webster, Will, & Ritchie, S. S.C.